The Classic David vs Goliath Struggle.....
Setting The Stage
Audio courtesy of Andrew Wood, producer of a recent interview of Percy Schmeiser that was conducted in England
A long time farmer and farm equipment dealer from the small rural community of Bruno Sask. He served as Mayor of the Town of Bruno from 1966-1983 and as a MLA (Member of the Legislative Assembly) for the Watrous constituency in the Provincial Legislature from 1967-71.
Excerpt from Aug 14, 1999 Vancouver Sun article by Dave Margoshes
"Percy Schmeiser was mad as hell, and decided he wasn't going to take it.
Schmeiser has been growing canola -- the yellow-blossomed oilseed that used to be known as rapeseed -- for 40 years, and he knows his stuff. He's been experimenting, developing his own varieties, using his own seed and generally prospering with canola. reaping the benefits derived from growing an increasingly popular crop.
So when Monsanto, the giant multinational agro-chemical company that is at the forefront of developing genetically modified foods, accused him of patent infringement and demanded restitution for its seeds, his pride was hurt. He chose to fight rather than roll over and take it."
Excerpt from Aug 14, 1999 Vancouver Sun article by Dave Margoshes.
"Monsanto, headquartered in St.Louis, makes the popular herbicide Roundup. Farmers all over the Prairies ---Schmeiser among them --- spray it on their fields, whereupon it kills every-thing growing there. Then they plant.
Using the controversial alchemy of genetic engineering, which has alarmed environmentalists and consumers, Monsanto has developed a canola seed completely immune to Roundup. That means a farmer can spray the herbicide over a planted field, kill all the weeds growing there, but not hurt the crop -- as long as it comes from Monsanto's seed.
The company sells the seed -- about half the canola planted in Saskatchewan this year comes from it -- but keeps the rights to the DNA itself.
It means that, rather than save seeds from last year's crop to use this year, as many do -- and as Schmeiser traditionally does -- farmers have to buy new seed from Monsanto each year.
In order to protect its investment, Monsanto has been vigilant in rooting out frugal farmers who might be cheating and saving seed, or borrowing a bit of seed from neighbours.
Farmers buying Monsanto's seed must sign a contract promising to buy fresh seed every year. And they must let Monsanto inspect their fields."
Excerpt from Macleans Magazine May 17, 1999. Article by Mark Nichols
"For 40 years, Percy Schmeiser has grown canola on his farm near Bruno, Sask., about 80 km east of Saskatoon, usually sowing each crop of the oil-rich plants with seeds saved from the previous harvest. And he has never, says Schmeiser, purchased seed from the St. Louis, Mo.-based agricultural and biotechnology giant Monsanto Co. Even so, he says that more than 320 hectares of his land is now "contaminated" by Monsanto's herbicide-resistant Roundup Ready canola, a man made variety produced by a controversial process known as genetic engineering. And, like hundreds of other North American farmer, Schmeiser has felt the sting of Monsanto's long legal arm: last August the company took the 68-year-old farmer to court, claiming he illegally planted the firm's canola without paying a $37-per-hectare fee for the privilege. Unlike scores of similarly accused North American farmers who have reached out-of-court settlements with Monsanto, Schmeiser fought back. He claims Monsanto investigators trespassed on his land -- and that company seed could easily have blown on to his soil from passing canola-laden trucks. "I never put those plants on my land," says Schmeiser. "The question is, where do Monsanto's rights end and mine begin?"
The landmark case, that went before the Federal Court of Canada, has attracted international attention because it could help determine how much control a handful of powerful biotech companies can exert over farmers.
Excerpt from August 19, 1999 Western Producer article by Adrian Ewins
"The high profile legal battle between Monsanto and a Saskatchewan farmer will go to trial in Saskatoon next year.
The two sides will square off in federal court on June 5, 2000 to argue the company's lawsuit alleging that Percy Schmeiser grew Roundup Ready canola without a license.
The trial date was set at the end of an eventful week that has brought the issue of seed patenting to national attention by pitting a United States-based multinational corporation against a lone farmer from Bruno, Sask.
"The case found its way into the courts in August 1998, when Monsanto filed a statement of claim alleging Schmeiser illegally bought Roundup Ready seed from local growers in order to plant his 1997 crop, then retained some of that year's seed to plant in 1998.
Schmeiser said he planted his 1997 crop with seed saved from 1996, and insists that any Roundup Ready growing on his land was spread by wind or by grain trucks travelling on roads adjacent to his fields.
In the statement of claim, Schmeiser says Monsanto has libeled him by publicly accusing him of committing illegal acts, trespassing on his land in order to obtain seed samples and improperly obtaining samples of his seed from a local seed plant.
The statement also accuses Monsanto of "callous disregard" for the environment by introducing Roundup Ready into the area without proper controls, and of contaminating crops grown by Schmeiser."
On Aug. 10, 1999 mediation talks to settle the dispute without going to trial ended in failure.
The next day, Schmeiser launched a $10 million lawsuit against Monsanto, accusing the company of a variety of wrongs, including libel, trespass and contamination of his fields with Roundup Ready."
"Schmeiser's lawsuit against Monsanto won't be dealt with until the original lawsuit has been resolved. "We want to have the patent infringement hearings run their course, then we'll pursue this," said Schmeiser's lawyer Terry Zakreski."
The Trial was heard June 5-20, 2000 in Federal Court in Saskatoon, Saskatchewan.
The Canadian federal court hearing lasted three weeks before a judge in Saskatoon, Saskatchewan. At trial, Monsanto presented evidence from two dozen witnesses and samplers that Schmeiser's eight fields all were more than 90% Roundup Ready, indicating it was a commercial-grade crop. Monsanto performed no independent tests as their tests were all performed in house or by experts hired by the company.
In his defense, Schmeiser showed his own farm-based evidence that the fields ranged from nearly zero to 68% Roundup Ready. These tests were confirmed by independent tests performed by research scientists at the University of Manitoba, in Winnipeg, MB. Schmeiser's defense also contained evidence that he didn't knowingly acquire Monsanto's product, segregate the contaminated seeds for future use or spray his canola with Roundup
Monsanto did not directly try to explain how the Roundup Ready seed got there. "Whether Mr. Schmeiser knew of the matter or not matters not at all," said Roger Hughes, a Monsanto attorney quoted by The Western Producer, a Canadian agriculture magazine. A canola scientist, in an affidavit for Monsanto in the trial, said Schmeiser's theories of cross-pollination by wind and bees did not make sense to him, given the purity of plants grown based on Monsanto's tests. "It was a very frightening thing, because they said it does not matter how it gets into a farmer's field; it's their property," Schmeiser said, in an interview with Agweek. "If it gets in by wind or cross-pollination, that doesn't matter."
Monsanto outlined their request for patent infringement seeking damages totaling $400,000. This included a list of civil damages, including about $250,000 in legal fees, $105,000 in profits they feel Schmeiser made on the 1998 crop, $13,500 ($15 an acre) for technology fees and $25,000 in punitive damages. Schmeiser feels that Monsanto has asked for exorbitant amounts to serve as a warning to other producers. At that time Schmeiser said he has already spent $160,000 of his own savings for legal fees and another $40,000 of his own time, travel and compensation for labor he had to hire when he was away from the farm.
He says that if he would have "bowed on my hands and knees" in the beginning, Monsanto might have settled for what it calculated were unpaid technical fees of about $15,000. Schmeiser says he has received donations to help his legal bills--mostly in $50 and $100 cheques from other farmers.
Schmeiser has been asked to speak all over the world on the dangers of GMO crops. Schmeiser believes the case revolved around a conflict of two set of rights. One set of basic "plant breeders' rights" allows Canadian farmers to buy seed and then plant offspring for one more year. On the other side, Canadian patent law allows companies to patent genes and then insert them into plant varieties and enter into contracts with farmers not to replant them.
"In my case, I never had anything to do with Monsanto, outside of buying chemicals. I never signed a contract," Schmeiser says. At the end of the first suit, Schmeiser says he will pursue a second lawsuit he filed last fall against Monsanto for contaminating his seed.
"If I would go to St. Louis and contaminate their plots--destroy what they have worked on for 40 years--I think I would be put in jail and the key thrown away," Schmeiser says.
The Federal Court of Canada issued their judgment in the case of Monsanto vs Schmeiser Enterprises over the technology use fee for Round Up Ready canola on March 29, 2001. Justice Andrew McKay upheld the validity of Monsanto's patented gene which it inserts into canola varieties to make them resistant to their herbicide Round Up.
McKay dismissed Schmeiser's challenge to the patent based on the claim Monsanto could not control how the gene was dispersed through the countryside.
In a key part of the ruling, the judge agreed a farmer can generally own the seeds or plants grown on his land if they blow in or are carried there by pollen -- but the judge says this is not true in the case of genetically modified seed.
It was that part of the ruling that most upsets Percy Schmeiser. The implications are wide ranging and Schmeiser has launched an appeal that was heard on May 15 & 16, 2002 in Saskatoon, Saskatchewan. The Federal Court of Appeal subsequently rejected Schmeiser's appeal. Schmeiser then asked for leave from Canada's Supreme Court to hear the case. Leave was granted in May 2003 and the case was heard on January 20, 2004.
The Supreme Court issued their decision in May 2004 and one can view the decision as a draw. The Court determined that Monsanto's patent is valid, but Schmeiser is not forced to pay Monsanto anything as he did not profit from the presence of Roundup Ready canola in his fields. This issue started with Monsanto demanding Schmeiser pay the $15/acre technology fee and in the end, Schmeiser did not have to pay. The Schmeiser family and supporters are pleased with this decision, however disappointed that the other areas of appeal were not overturned.
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