COMMENTARY

Canadian sustainable ag professor takes issue
with Percy’s detractors
Don’t believe everything you read, University of Guelph professor urges.

 

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NF

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