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).
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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:
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.
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.
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.
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
Department of Plant Agriculture
University of Guelph, Ontario, Canada
Specializing in pasture and grazing management, organic farming