TITLE: A fanciful tale... On the Appeal of the Percy Schmeiser Decision AUTHOR: E. Ann Clark, Department of Agriculture, University of Guelph (Ontario, Canada) DATE: May 2002 URL: http://www.plant.uoguelph.ca/faculty/eclark/judge.htm NOTE: Background information on the Percy Schmeiser case is available from http://www.percyschmeiser.com. Other papers from the author are at http://www.plant.uoguelph.ca/faculty/eclark/. A FANCIFUL TALE... ON THE APPEAL OF THE PERCY SCHMEISER DECISION E. Ann Clark Plant Agriculture, University of Guelph, Guelph, ON The Appeals Court judges hearing the case of Percy Schmeiser should be a philosopher, a botanist, and a keen-eyed warrior. The philosopher would bring logic and the ability to reason impartially. The botanist would understand the sex drive of plants, and could provide expert commentary on pollen movement and seed dormancy. The keen-eyed warrior would bring the personal integrity to do the right thing - and the vision to see the downstream implications of seemingly expedient decisions. Let's imagine the courtroom, as they sit to hear the appeal. These three learned judges would hear from Schmeiser's young Saskatchewan lawyer and from Monsanto's impressive legal team. Monsanto would have spared no expense in this pivotal test case, bringing in a squadron of quick-witted senior lawyers to ensure a favorable outcome. With over 2000 similar lawsuits already reportedly hanging on this decision, one of the key segments of their employer's overall global strategy would be at stake. The judges would hear that a federal (lower court) judge ruled as of a year ago that thenceforth, a farmer is to be considered guilty of patent infringement, and liable for exorbitant damages, if two things happen: * the farmer knows or 'should have known' that a patented gene arrived anywhere on his (or her) farm, regardless of how it got there, and * the farmer doesn't tell Monsanto to come and fetch it. That is all it takes. Indeed, Monsanto has actually filed a counter-appeal to the judge's decision, remove the "knows or should have known" requirement. If successful, then growers would be liable of patent infringement even if they don't know the genes are on their land. Ignorance will be no excuse. In this imaginary courtroom, the Appeals Court judges would further learn that it doesn't matter if the farmer benefits in any way from the patented gene which has arrived unannounced on his property. The federal court judge ruled that it is patent infringement whether he benefited or not. And that is the entire case. At this point, Monsanto's lawyers would sit down, triumphantly. Now, it would be the turn of the judges to make their own enquiries. Imagine what they might say. The soft-spoken philosopher could perhaps be intrigued about the 'regardless of how it got there' argument. She might query the lawyers to be sure she understood the point, and they would assure her that according to the federal judge, a farmer is just as guilty of patent infringement: * if the patented seed is blown in from the roadside where it had dropped off of a truck on its way to the crusher, or * if it was cached there by an industrious field mouse, or * if a dust devil lifted up his neighbor's windrowed canola and deposited over his quarter section, or * if it arrived in pollen from fields up to 8 km away, or * even if he'd carried it innocently onto the farm in sacks of supposedly non-GM seed that were already contaminated, as if he'd actually stolen the seed. It would be a revelation to her to learn that Schmeiser had not been found guilty of theft at all, and even more surprising, that all such charges had been dropped before the trial, due to lack of evidence. But it didn't matter, insisted the federal judge. He was guilty anyway because it was there, regardless of how it got there. Trying to follow the logic of this argument, the philosopher might suddenly think of her own little garden. The philosopher takes quiet pleasure in growing her own sweet corn, and has long enjoyed a friendly, annual competition with her next-door-but-one neighbor George to see whose sweet corn was the sweetest. Well, George had been bragging all season about the fancy price he'd paid for his new GM sweet corn seed this year, while the philosopher had stuck with her traditional favorite. If George's corn cross-pollinated with mine, she might muse aloud, would I be guilty of patent infringement? Well no, or at least not yet, they would assure her, because you couldn't have known it had cross pollinated. Until we win our case to remove the 'know or should have known' judgement, they would explain patiently, you couldn't be guilty of patent infringement because you wouldn't have known that you were in possession of our patented genes. Oh, she would say, visibly relieved. But then, with a flash of guilty insight, she might realize that George's corn is yellow, and hers is white. And she may recall that just last night, she'd served white corn-on-the-cob - with an incriminating smattering of yellow kernels - to her family! If his pollen crossed with her corn, she may ask timidly, would some of my kernels be yellow? The botanist would intervene authoritatively, assuring her that this would indeed be so. Oh dear, she may say, shamefacedly. Then that means his patented genes would have arrived as pollen in my backyard, without my knowledge or intent, and I would know they arrived because of the yellow kernels. That would make me as guilty as Percy. Now what am I to do, she may appeal to the lawyers? Must I quickly call up Monsanto and tell them of my discovery, to avoid being sued myself? She might imagine with chagrin what the newspaper headlines would look like. Well, yes, the lawyers could admit. It would be a rather good idea, because after all, now you know you have in your possession something you didn't buy - Monsanto's patented genes. Umm, she might stall, trying to reason through the breathtaking ramifications of this argument. She may get bogged down, trying to fathom how the evidence could have been so twisted as to convict a farmer whose land had been violated, instead of the company which had released the proprietary gene knowing it would contaminate both his crop and land. Her gentle voice might trail off into silence. At once, the keen-eyed warrior would shoot out a leading question. But wait a minute, guys, what is the point of calling up Monsanto? Why, to give Monsanto the ability to reclaim their patented genes, of course, they would say matter-of-factly. So, just how is it that they are going to do that, he would demand? Are they going to rip open every cob to check for yellow kernels, and then pluck them out one-by-one? Well, no, they might bluster, realizing how silly that would look. They'd pull up the whole plant. What? he would thunder. Pull up every contaminated corn plant in the philosopher's garden? If they nodded, perhaps slightly nonplussed by the direction this was going, he would continue incredulously. Do you mean to tell me, he would say, that once Monsanto's pollen has contaminated her corn plants - with even 1 or 2 kernels in an ear being yellow - then the whole plant becomes Monsanto's property? How do you figure that, he would explode, when it is her garden, on her private property, and her own corn that she planted herself?? Saved by the bell, the Monsanto lawyers, resplendent in their smartly tailored suits, would beat a hasty retreat for lunch. Perhaps they would resume after lunch with a quick clarification. Of course, they could state with conviction, the philosopher is a home gardener, not a farmer. The federal judge's decision applies only to farmers, they may say reassuringly. Well, that is a relief, she might think, but what about her son, she would ask. He had invested in a small market garden nearby. He is growing 5 acres of vegetables, including an acre of non-GM sweet corn. Was his 5 acres enough to be included under the judge's decision, she might enquire? The Monsanto lawyers would perhaps call a quick recess to phone back to St. Louis for clarification. After all, the issue was the presence of patented genes in the hands of someone who didn't buy them, right? Did size of the operation matter? With some embarrassment, they might have to retract their earlier statement and admit that size may well be irrelevant. You see, they could explain, Monsanto is relatively new to the business of suing farmers for patent infringement, and hasn't yet started on home gardeners or fresh market gardeners. With just a touch of annoyance, they may say that the other life science companies have managed to safeguard their patented genes without suing farmers, so Monsanto is having to plow new ground on their own. Accordingly, they may choose to reserve judgement on the size issue. But in principle, they may nonetheless assert, both she and her son would be liable, because after all, rules are rules. It wouldn't do to have patented genes falling into the wrong hands. At this point, the botanist may take up a different line of questioning. OK, he could say crisply, I understand that Schmeiser is a lifelong seedsaver, is that right? Rejuvenated by their power lunch, the Monsanto lawyers would nod briskly. I understand that he had bred up his own variety of canola, with such good disease and pest resistance that he was able to plant his canola 'back-to-back', is that right? After a quick conference with their well paid consultant to clarify the meaning of the term, they would nod again. So, the botanist might continue, he had planted canola after canola when Monsanto alleged patent infringement? This time, they would know the answer and nod brightly. Well then, the botanist could query, if he was planting canola after canola, instead of say, wheat after canola, how was it that Monsanto was going to come out and remove 'their' plants? He would have lost them entirely with that question, so he'd have to back up a little. As a former professor, the botanist would say calmly, OK, how would a farmer 'know' that he had GM canola on his property? The only kinds of GM canola that are in the marketplace today are engineered for herbicide tolerance. That means, you can spray them with a specific herbicide, and they won't die, but everything else will. So, let's say a farmer has planted a non-GM canola, which unbeknownst to him, received some cross-pollination with GM pollen from a neighbor. Now, canola is a barely civilized crop which still retains many of the properties of a wild species - including seed shattering (where some of the seed falls to the ground at harvest) and seed dormancy (the seed is alive but won't necessarily germinate for some time). So, when he harvested his crop, seed - some of it dormant and some of it herbicide tolerant (HT) - would fall to the ground and enter the soil seed bank. So, the next year, the farmer goes out to his former canola field and sprays it with a pre-plant herbicide in preparation for his next crop Everything dies - except the volunteer (HT) canola from the soil seed bank! He knows it must have been herbicide tolerant in order to "be" there after he'd sprayed the herbicide. And since he didn't plant it, then it must have come from somewhere else. Depending on his intestinal fortitude, he would either stick tight and hope that none of the neighbors have seen it and turned him in to Monsanto's anonymous hotline, or he would call up Monsanto himself and ask them to come out and remove the errant plants. And depending on the day, the botanist would continue, they could either arrive with a threatening letter alleging patent infringement, or they could bring a crew and pull out the canola, right? Rather than pursue this uncomfortable line of questioning, the Monsanto lawyers may nod uncertainly. But what if he is growing canola after canola, the botanist would doggedly ask Monsanto's lawyers, who would be straining to catch every nuance. How would he know he's got contamination? They still don't follow, so he would elaborate. Well, a farmer such as Schmeiser is not going to spray an herbicide directly onto his own canola, because as he well knows, it would kill his crop. It is his own variety of canola, which he'd bred for years, and was not bred to be HT. So, he could have any number of volunteer HT plants growing up within his newly sown canola, and he'd never know it because they would both be canola, and they would look the same - right? OK, this the lawyers could follow. The botanist may continue, but in Schmeiser's case, he traditionally sprayed the herbicide glyphosate (Monsanto's trade name Roundup) around the telephone poles in his field along the roadway, to make it neat and tidy. But that year, the sprayed canola didn't die. So, both he and an anonymous neighbor knew his seed had been contaminated by Monsanto's Roundup Ready gene (making it tolerant to the herbicide Roundup). A bother and a nuisance to him, because he had no use for the trait, but it was there nonetheless, just like George's yellow kernels in the philosopher's garden. But what was he to do about it? Unlike volunteer canola in a wheat crop, you cannot pick out volunteer canola in a canola crop. They are identical. So, the unflappable botanist would conclude, the second provision of the federal judge's decision was that Schmeiser was guilty because he didn't call Monsanto to come and pull out the plants. So I repeat, how is it that Monsanto was going to distinguish - and remove - their GM contaminated canola, within a non-GM canola field - if he had in fact called them? No answer would come from the pale-faced Monsanto lawyer team. Perhaps they hadn't thought of that one. We'll have to confer with our consultants and get back to you, they may say tersely. At this break in the discussion, the keen-eyed warrior would launch into the implications of seed dormancy. His sister and her family had bought a farm in Saskatchewan two years ago. Perhaps he would remember that they'd commented just last Sunday that they were having trouble controlling HT canola in their grain fields. Seems the canola was tolerant to two or possibly three of the major herbicide families, and threatened to become a serious weed. As young farmers, they were struggling to pay the higher costs of weed control, having to apply several different sprays to find one that worked. They'd never grown canola at all, he may assert, although the former owner had grown it. So, the keen-eyed warrior would challenge the lawyers, was his sister's family liable for the GM canola growing in their fields? Umm, the Monsanto team would confer together. Well, yes, they may eventually conclude. The patented genes are there, and your sister's family didn't buy them, so they are liable for patent infringement if they don't so notify us. Now, where did you say she farmed? the ever vigilant Monsanto lawyers could enquire. Instantly alert to the implications, the keen-eyed warbier would retort, none of your business! He would be inwardly glad that his sister had taken her husband's name upon marriage, little realizing how diligent were the investigative teams of Monsanto. The keen-eyed warrior may continue, Monsanto only engineers one of these herbicide tolerant genes, right? Correct, they would said. But he had no doubt that she'd said her husband was having trouble with two or more different ones. Then he may turn to the botanist and ask, does that mean that genes patented by more than one company are now present in the seeds dormant in their soil from the previous owner? Without hesitation, the botanist would affirm that, yes, that is what it means. Turning back to the Monsanto legal team, the keen-eyed warrior would boldly ask if his sister should call every company that might have patented genes present in the soil seed bank of her farm? No need, they would respond cheerfully. Monsanto is the only company that sues for patent infringement. The others use other strategies, for example, embedding their patented traits in hybrid canola, which the farmer cannot save as seed anyway, to safeguard their patented genes. Still unsatisfied, the keen-eyed warrior would press the issue of liability. For how many years will my sister's family be liable for dormant seed contaminated with Monsanto's patented gene, he may ask, appealing to the botanist for help. Well, the botanist would say authoritatively, the volunteers from a given crop of canola can remain dormant in the soil for 5 to 8 years, depending on the type of canola. Hold on now, the keen-eyed warrior would exclaim, 5 to 8 years liability for a crop she didn't even grow? But, the botanist would continue quietly, the liability will actually be permanent. What?! the keen-eyed warrior would shout. The botanist would explain that 5-8 years pertained to a single contamination event. All evidence suggests that new contamination would be coming onto her farm every time they grew canola, whether in contaminated seed purchased for sowing, or in the form of GM pollen from neighboring farms, or for that matter, as seed whenever the wind blew in Saskatchewan. The keen-eyed warrior would fling himself back into his chair, clearly disgruntled, and the questioning could be resumed by the philosopher. Now weak at the knees, she may ask, if another neighbor across the road were to grow a GM squash and it were to cross-pollinate with her treasured heirloom variety, would she lose that crop too? Why of course, they would respond. She may begin to wonder if she could ever again grow sweet corn or heirloom varieties of any open-pollinated crop in her own backyard without risking a charge of patent infringement. Unless, of course, it may dawn on her, she chose to buy Monsanto GM crops herself and forego the varieties she had grown to love over the years. Ah ha, she may think to herself - that is the whole point, isn't it? One last question from the botanist could conclude the day's proceedings. Standing to address the Monsanto team, his tweed coat hanging loosely around his spare frame, the botanist may forthrightly ask, is it true that the life science companies are already field testing pharmaceuticals, vaccines, industrial enzymes, and other traits engineered into open-pollinated crops, such as corn? They may nod weakly, eyes averted, knowing where he was going with this line of questioning. And do you agree, he would declare, that pollen from these crops can move great distances - like, a kilometer or more? Their well paid consultant would struggle to his feet to trot out some well-worn contrary evidence, which the botanist, who was thoroughly familiar with the latest scientific literature on pollen movement, would convincingly challenge. Then how, the keen-eyed warrior may interrupt, will you avoid the inadvertent contamination of food and feed crops with the drugs, vaccines, and enzymes produced by these GM crops, given that you cannot prevent contamination of canola with herbicide tolerance genes in Percy Schmeiser's canola field? Thundering silence would ensure from the Monsanto legal team. Shaking his head in disbelief, the botanist would resume his seat. At this point, the three Appeals Court judges would adjourn to review their new understanding of the far-reaching implications of the federal judge's earlier decision, concluding that: * Although the current suit pertains to a single farmer, in principle any grower, of any size, whether or not they ever purchased GM seed or benefited in any way from the traits conveyed by the seed, could be found guilty of patent infringement * The only requirements for culpability are a) the presence of patented genes on one's land, regardless of how they got there, and b) a grower who knows or "should have known' that the genes were there, but failed to contact Monsanto. * If Monsanto succeeds in throwing out the 'knows or should have known' clause, then it will be impossible to avoid prosecution for inadvertent pollen or seed contamination, leaving all growers literally defenceless against charges of patent infringement * What is meant by 'should have known' is subject to interpretation, and doubtless, further litigation. But in principle, because everyone 'knows' that pollen moves, everyone should assume that their garden or cropland is being contaminated by pollen from neighboring land sown to the same open-pollinated crop. This would include corn, canola, and squash, to date, but before long, any of the many promiscuous horticultural species that are currently being genetically engineered, like the cucurbits or brassicas, will be suspect. * Once an individual plant, or even a single kernel on an individual plant, has been pollinated by pollen carrying Monsanto's patented genes, the whole plant becomes the property of Monsanto * Once plants in a field are found to carry Monsanto's patented genes, the proceeds of the whole field become the property of Monsanto. How many plants in a field need to be contaminated in order to cause the entire crop to become Monsanto's property was not stated in the judge's decision, but in principle, could one be enough? * This entire situation resulted directly from the decision to allow individual genes to be patented. It could never have happened with conventionally bred varieties, because it is the variety and not an individual transgene that is 'owned'. A seed company's 'owned' variety might cross-pollinate with a neighboring field, but the resulting seed would be a cross - not the owned variety, so the company would no longer own it * Of all the life science companies, only Monsanto has chosen well publicized litigation as its method of preference for enforcing patent rights. There are other, equally effective alternatives, as has been amply shown by the other companies that are just as protective of their investment in patented genes. Thus, protection of intellectual property is clearly not the only, or perhaps even the main reason for Monsanto's strategy in threatening to bring thousands of farmers into court. The purpose is to generate fear, and hence, compliance, in order to force the purchase of more GM seed. * The consequences of being 'caught' with Monsanto's genetics on their land or personal garden will be too great for many growers to accept, particularly after watching the reputation and livelihood of Percy and Louise Schmeiser of Saskatchewan, the Rodney Nelson family of North Dakota, the Troy Roush family of Indiana, and other large and successful farmers being systematically destroyed by well publicized allegations of patent infringement. In a nutshell, the three learned Appeals Court judges may finally realize, if the federal court judge's decision is allowed to stand, the only way for a farmer, market grower, or backyard gardener to avoid prosecution would be to buy Monsanto's GM varieties themselves. Permanently. © 2002 E. Ann Clark. This text is the property of the author, E. Ann Clark. It may be downloaded or reproduced in whole or in part by any member of the academic community for the purposes of discussion, debate and quotation and may be placed on web sites or on chat lines so long as this copyright notice is included. It may be reproduced on the Internet so long as no charges are levied for its use. It may not be reproduced for sale in any form anywhere without the express written permission of the owner.