Wayne Stollings wrote:
This is an example of what the Canadian farmers had to endure and what they eventually fought against ... and this is what every European is now fighting against and what every American should fight against ... but to live in the US is to be insulated from what is happening in the rest of the world. Media makes it so.
That really does nothing to support the claims of the inadvertent contamination of the crops resulting in litigation from Monsanto. It seems to be more emotional misdirection than anything.
A line by which farmers could be reported for violating a contract is something endured and fought against? Why not just live up to the agreement instead? That seems to be the simple solutuion to me, but then again I do not have the ulterior motives some do in this case.
They were faced with the fear of being watched constantly, as they had been stalked both at home and farm by private investigators hired by Monsanto. Monsanto representatives had taken every effort to discredit Percy Schmeiser and ruin his reputation through unfounded rumors and gossip in his own community. Monsanto has publicly boasted about their toll-free snitch line and how they would go after farmers, and in the Schmeiser situation, Monsanto had clearly demonstrated their ability to intimate people for their own greed.
There was no greed in Schmeiser's camp? The court ruling clearly stated the judge did not believe the possible vectors of insertion of the Monsanto seed were probable and the fact that most of the crop was from Monsanto seed belied any but an active plan of stealing the technology for his own profit. That is court ruling not media spin. http://scc.lexum.org/en/2004/2004scc34/2004scc34.html
In this case, the appellants’ saving and planting seed, then harvesting and selling plants that contained the patented cells and genes appears, on a common sense view, to constitute “utilization” of the patented material for production and advantage, within the meaning of s. 42. The other questions of principle relevant to “use” under s. 42 also support that preliminary conclusion. By cultivating a plant containing the patented gene and composed of the patented cells without license, the appellants deprived the respondents of the full enjoyment of the monopoly. The appellants’ involvement with the disputed canola was also clearly commercial in nature
Case law shows that infringement is established where a defendant’s commercial or business activity involving a thing of which a patented part is a component necessarily involves use of the patented part. Infringement in this case therefore does not require use of the gene or cell in isolation. Infringement also does not require that the appellants have used Roundup herbicide as an aid to cultivation. First, this argument fails to account for the stand-by or insurance utility of the properties of the patented genes and cells. Second, the appellants did not provide sufficient evidence to rebut the presumption of use. While a defendant’s conduct on becoming aware of the presence of the patented invention may assist in rebutting the presumption of use arising from possession, in the circumstances of this case, this presumption stands unrebutted. The appellants actively cultivated Roundup Ready Canola as part of their business operations.
In light of all of the relevant considerations, the appellants used the patented genes and cells, and infringement is established.
5 In the 1990s, many farmers, including five farmers in Mr. Schmeiser’s area, switched to Roundup Ready Canola, a canola variety containing genetically modified genes and cells that have been patented by Monsanto. Canola containing the patented genes and cells is resistant to a herbicide, Roundup, which kills all other plants, making it easier to control weeds. This eliminates the need for tillage and other herbicides. It also avoids seeding delays to accommodate early weed spraying. Monsanto licenses farmers to use Roundup Ready Canola, at a cost of $15 per acre.
6 Schmeiser never purchased Roundup Ready Canola nor did he obtain a licence to plant it.
Yet, in 1998, tests revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up of Roundup Ready plants
. The origin of the plants is unclear. They may have been derived from Roundup Ready seed that blew onto or near Schmeiser’s land, and was then collected from plants that survived after Schmeiser sprayed Roundup herbicide around the power poles and in the ditches along the roadway bordering four of his fields. The fact that these plants survived the spraying indicated that they contained the patented gene and cell. The trial judge found that “none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality” ultimately present in Schmeiser’s crop
((2001), 202 F.T.R. 78, at para. 118).
63 A Monsanto investigator took samples of canola from the public road allowances bordering on two of Mr. Schmeiser’s fields in 1997, all of which were confirmed to contain Roundup Ready Canola. In March 1998, Monsanto visited Mr. Schmeiser and put him on notice of its belief that he had grown Roundup Ready Canola without a licence. Mr. Schmeiser nevertheless took the harvest he had saved in the pick-up truck to a seed treatment plant and had it treated for use as seed.
Once treated, it could be put to no other use. Mr. Schmeiser planted the treated seed in nine fields, covering approximately 1,000 acres in all.
64 Numerous samples were taken, some under court order and some not, from the canola plants grown from this seed. Moreover, the seed treatment plant, unbeknownst to Mr. Schmeiser, kept some of the seed he had brought there for treatment in the spring of 1998, and turned it over to Monsanto. A series of independent tests by different experts confirmed that the canola Mr. Schmeiser planted and grew in 1998 was 95 to 98 percent Roundup resistant
. Only a grow-out test by Mr. Schmeiser in his yard in 1999 and by Mr. Freisen on samples supplied by Mr. Schmeiser did not support this result.
66 The remaining question was how such a pure concentration of Roundup Ready Canola came to grow on the appellants’ land in 1998. The trial judge rejected the suggestion that it was the product of seed blown or inadvertently carried onto the appellants’ land (at para. 118):
It may be that some Roundup Ready seed was carried to Mr. Schmeiser’s field without his knowledge. Some such seed might have survived the winter to germinate in the spring of 1998. However, I am persuaded by evidence of Dr. Keith Downey . . . that none of the suggested sources could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality evident from the results of tests on Schmeiser’s crop.
67 He concluded, at para. 120:I find that in 1998 Mr. Schmeiser planted canola seed saved from his 1997 crop in his field number 2 which he knew or ought to have known was Roundup tolerant, and that seed was the primary source for seeding and for the defendants’ crops in all nine fields of canola in 1998.
68 In summary, it is clear on the findings of the trial judge that the appellants saved, planted, harvested and sold the crop from plants containing the gene and plant cell patented by Monsanto
. The issue is whether this conduct amounted to “use” of Monsanto’s invention — the glyphosate-resistant gene and cell.
Yes Wayne, ... it's all there. But the courts also subsequently ruled that Shmeiser made no profit from the GMO's and it was ordered that Monsanto had to "clean up" their tainted seed from his property.
Actually, this would have been the final ruling as the Supreme Court has no higher court for appeals. They did rule there was no ADDITIONAL profit from the sale
of the crop due to the GMO aspect since he sold it for feed, there was no legal formula to use in awarding a payment to Monsanto under this case. There is no reference I can find that indicates a ruling for Monsanto to "clean up" the seed the court found had been intentionally planted by Mr. Schmeisser. I see his claim to that effect in an "out of court settlement", which sounds very unusual at face value given the court rulings.
Schmeiser was sued by Monsanto in 1998 for allegedly violating patent rights for biotechnology via the cultivation of genetically modified canola seeds. He finally won his battle with the multinational corporation in an out-of-court settlement agreed upon in March 2008. Monsanto paid all clean-up costs for Schmeiser’s fields.
Huh? The Supreme Court ruling clearly stated that he had violated the patent rights. How would the battle continue passed that point?
“It wasn’t just a victory for ourselves, but for all farmers,” Schmeiser said. “If you are contaminated now, there is an avenue, or a precedent has been set, where you can take Monsanto to court.” http://www.straight.com/article-286277/ ... man-rights
I see the claim, but no supporting documentation of that claim.
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.http://www.percyschmeiser.com/conflict.htm
Because he did not sell the product for a premium there was no additional profit according to the actual ruling. Is there a slightly less biased source to confirm any of his claims?
Schmeiser pleased with victory over Monsanto
In an out of court settlement finalized on March 19, 2008, Percy Schmeiser has settled his lawsuit with Monsanto. Monsanto has agreed to pay all the clean-up costs of the Roundup Ready canola that contaminated Schmeiser's fields. Also part of the agreement was that there was no gag-order on the settlement and that Monsanto could be sued again if further contamination occurred. Schmeiser believes this precedent setting agreement ensures that farmers will be entitled to reimbursement when their fields become contaminated with unwanted Roundup Ready canola or any other unwanted GMO plants.http://www.percyschmeiser.com/
This sounds very odd since the courts ruled that he intentionally planted the crop, which would not be a contamination by definition.
But GMO's continue to contaminate the fields of both conventional and organic farmers, and these farmers are forced to pay Monsanto $15 per acre for a contamination they do not want. Monsanto has invested huge amounts in the development of their technology .... and they must make a profit.
That is a claim which still has not been proved. This case clearly indicated a willful plan to acquire the GMO product, which was claimed to be initially from an unknown source. However, the actions indicated the intent, which also calls into question the honesty of the other claims.