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July 2, 2004: I would like to respond, if I
may, to the points made by Mr./Ms. Cody Wheeler (CW) in a 14
June posting (Cody
vs. Schmeiser).
CW alleges that Schmeiser either sought to profit or wanted
to test Monsanto's patent. I have a copy of the actual transcript
(1000+ pages) of the original Federal Court hearing (the first
of three, of which the third was the Supreme Court hearing)
and have been working through it to understand exactly what
happened to account for the many anomalous features of Monsanto's
evidence against Schmeiser. Some points which may help to
clear up CW's confusion:
1. Schmeiser
was an innocent bystander. There was no evidence that he obtained
the seed fraudulently, and, indeed, the whole “theft”
allegation was dropped before the start of the original trial.
Various innuendoes were regularly raised by Monsanto, some
of which were accepted by the Supreme Court, but the fact
remains that if he didn't steal it, he was an innocent bystander.
2.
One of the Monsanto-formulated “facts’’
is the percentage contamination of Schmeiser's fields. I am
working now on a formal analysis of this so will await the
finished work before I release it, but suffice it to say that
the method by which the samples were taken and analyzed deserves
serious scrutiny before one accepts—as the Supreme Court
did—Monsanto's figures of “95- to 98-percent”
contamination. This willingness to accept Monsanto's numbers,
deriving as they did from a clear vested interest, is surprising
given that the exact same samples were also analyzed by an
independent lab at the University of Manitoba, which came
up with figures of “0- to 68 percent.” There is
no way that 95- to 98 percent contamination could come by
accident—fair enough. But 0- to 68 percent, with the
contamination thinning with distance from the road, is plausible
enough.
3.
Another oft-repeated Monsanto “fact” that found
its way in the Supreme Court Decision was that Schmeiser had
“segregated” his 1997 crop for seeding in 1998.
Now, what actually happened (in brief) was that once he'd
realized Roundup Ready contamination in one of his fields
(apparent when he and a hired hand manually sprayed Roundup
with a backpack sprayer around telephone poles and in the
adjoining allowance between the poles and the roadway—the
local municipality pays farmers to spray around the poles,
and some plants lived—he did what any farmer would do.
Curious to see how far out into the field the contamination
stretched, he brought out his sprayer and—driving parallel
to the road, as close as possible to the poles and weaving
in and out of the poles (transcript p. 850 onwards)—he
entered the field, made one pass, turned around, and made
a second pass back to the entrance, ultimately spraying Roundup
on an area estimated at approximately 3 acres. He was using
half of an 80-foot spray boom on each pass, so the total distance
out into his field was presumably 80 feet.
This 3 acres—along with enough of the rest of the field
to make a full combine load—was dumped into an old truck.
The 3 acres was not harvested separately; it was part of a
load. You would not do this if your intent was to segregate
and capture the utility of the Roundup Ready gene borne by
the plants which survived the Roundup spray.
For plausible reasons which I won't elaborate here (start
at pp. 857 of the court transcript for details), this 175-bushel
load ended up going for seed treatment in readiness for planting
the following year. Remember that Schmeiser was a seed saver
and routinely replanted his own seed. To keep this in perspective,
the treated load was invoiced at about 8000 pounds of seed
(p. 861). Given the amount of plants surviving in the sprayed
3 acres, rough calculations presented by Monsanto's lawyer
predicted a total yield of about 3000 pounds of seed, which
Schmeiser argued was low (p.1031). Nonetheless, the point
remains that the volume of seed treated exceeded by a considerable
amount the volume of Roundup Ready sprayed seed that could
have been taken from the 3 acres. Again, inconsistent with
the innuendo of intentional segregation.
When planting, Schmeiser routinely mixes treated with untreated
seed in roughly a 2:1 ratio. He seeded 1030 acres at approximately
10 pounds per acre, given hilly land, etc., as discussed in
the transcript. That would be 10,300 pounds of seed, or more
than the total amount of treated seed he had, corroborating
his statement that he mixed treated and untreated seed for
planting his 1998 crop. You would not do this if your intent
was to segregate to capture the Roundup Ready trait.
Based on this evidence, which was available in the transcript,
Schmeiser did not segregate anything.
4.
The Supreme Court arguments about “innocent bystanders”
not being liable are inconsistent with the evidence showing
that Schmeiser was indeed an innocent bystander, yet he was
found guilty of patent infringement, despite the fact that
he didn't engage the utility of the gene. He was found guilty
of infringement when he replanted the seed. He “knowingly”
planted the seed, in the sense used by the Court, in that
he knew full well that it was contaminated with the Roundup
Ready trait. As I argued in an article I wrote about this
case for CropChoice, "…everyone will know of the
likelihood for at least some errant seed on their land"
and indeed, in any sack of certified non-GM seed. The evidence
supporting this point is already in the refereed literature,
as pointed out in the CropChoice article. Thus, it could well
be argued that anyone planting canola in western Canada is
“knowingly” planting Roundup Ready (or Liberty
Link or Clearfield,
etc.), because the contamination is so pervasive.
I hope this helps clarify what really happened, for CW and
other New Farm readers, as documented in the actual court
proceedings.
Dr. E. Ann
Clark
Associate Professor
Department of Plant Agriculture
University of Guelph, Ontario, Canada
Specializing in pasture and grazing management, organic
farming and GMOs
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