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Monsanto v Schmeiser

Monsanto provide a genetically modified seed for a crop called Canola (in England rapeseed). It is patented, and that gives Monsanto the right to control the circumstances under which anybody grows the crop using the seed. They do this by requiring anyone who purchases the crop, to agree not to sow seeds from the crop, but in the next season to purchase seeds from Monsanto.

Mr Schmeiser is a farmer in Bruno, Saskatchewan. His farm is near fields growing Monsanto's canola. Seed in some way got across onto Mr Schmeiser's farm, and grew in the next season. Mr Schmeiser took the seeds from his crop in th eusual way, and sowed them again in the next season. That new crop included plants whose origin was Monsanto seed.

The court found no dishonesty on Mr Schmeiser, but found that, by the time this came to litigation, Mr Schmeiser had known, or ought to have known that, mixed in with his seed, was Monsanto seed. There was no practicable way of distinguishing the seeds, but it found that by sowing the seed, he had made use of Monsanto product. Once that finding was made, there was no need to find any intention; the patent infringement had occurred, and Mr Schmeiser was due to pay damages, though nothing like as much as Monsanto had requested.

Where does all this leave us?

For Mr Schmeiser, and probably any other farmer farming a crop next to such a field, he is surely placed in an impossible position. He cannot in reality grow canola, because the chances are that in doing so, he will infringe Monsanto's patent, when he sows seed taken from his own field. He will not be able to tell which seed is which. He is, in effect put out of business.

The judge said (at [92])

Thus a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbour’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.

He does not ask how the farmer's proper lawful, honest and traditional activities are to continue.

The court granted an injunction (at [126]) to prevent Mr Schmeiser sowing crops which he knows or ought to know are derived from Monsanto seed. He pointed out in support of this that Monsanto had been prepared to go to other farmers complaining of this contamination to remove contaminated crops. The judge seems to imply that this is somehow an adequate remedy.

Monsanto are happy. The law has allowed them to put the business of another awkward independent thinking farmer at risk. No doubt Mr Schmeiser will have to sell up or grow a different crop. No doubt also, farmers all over the world now see that Monsanto will do whatever is necessary and available to them to protect their financial interests. No doubt such farmers are rather more afraid, and if they aren't yet afraid, they porobably should be.

Monsanto has won another battle, but in the process committed a huge own goal. I have seen comment in many places, and from sources who can be expected to be rational in their approaches. None that I have seen has suggested that Monsanto behaved in a way which has improved their reputation.

That is not to say that they have not tried. In a report in New Scientist (7 April 2001), a spokesperson is quoted saying that Monsanto tries to prevent the accidental spread of its canola crop, and that it only sues where 'it suspects … growing the crop intentionally' As to the first point, there is little in the judgment to suggest that Monsanto do do this, and indeed one should rather ask what gives them the right to think it is proper to allow their seed afflict neighbouring farms, and their own license application envisaged a general spreading of the use of the crop. As to the second, the spokesperson seemed to have forgotten that no allegation was continued at trial that the Mr Schmeiser's actions had been intentional. They had no evidence. Even more mind-boggling is the conceit which their statement implies. It is apparently for Monsanto to decide who they believe and who they do not, and they will exercise the extraordinary privileges granted to them by law accordingly.

The judge, sadly, has equally done his profession little credit. His judgment shows no sign of any awareness of the damage done to prfectly normal activites of farmers who have no desire to become beholden to Monsanto.

It would be easy to conclude that Monsanto are evil bullies. That is probably wrong, but if it is wrong, then it is only because they are merely people with no awareness of the utter immorality of what they do. They are probably just bullies with no sense of conscience. The patenting of living material is fundamentally wrong, and will inevitably lead to more and more injustice of the sort perpetrated here by Monsanto.

The bigger question is the guilt of politicians who do not have the will to resist the patenting of life forms. One way or another such patents will cause damage.

Here is a table of links relating to the story:

GoPercy Schmeiser's home page.
GoCanadian Broadcasting Corporation's collection of material on the topic.
GoMonsanto's home page
GoCBC links to material on the case.
GoThe decision (pdf)
GoThe decision part 1
Gothe decision part 2
Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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18 October 2013 452 18 October 2013