Judge Andrew MacKay is now considering the case of Monsanto versus Percy Schmeiser.
The federal court judge is faced with two different stories about how Schmeiser’s 1997 and 1998 crops came to contain the Roundup Ready gene. He is also faced with opposing legal arguments about how to deal with the evidence.
Monsanto says Schmeiser obtained and knowingly grew Roundup Ready canola, and therefore should have to pay the company hefty fines. The company wants a $15 per acre fee to make up for the technology user agreement it believes Schmeiser should have paid, and it wants the $105,000 profit it claims Schmeiser made on his 1998 crop, and $25,000 in punitive damages to serve as a warning to other producers.
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Monsanto’s lawyers said Schmeiser’s story about wind and bees and passing trucks causing the gene to appear in his crop is not believable, and that Schmeiser himself has “absolutely no credibility.”
Schmeiser’s lawyer argued the farmer didn’t do anything to cause Monsanto’s patented gene to appear in his crop, and therefore didn’t do anything wrong. He said Schmeiser saved and reused his own seed, which thousands of farmers do every year.
Both sides summed up their arguments in closing statements given on June 13 and 14. MacKay said he does not expect to rule on the case before the end of August.
Regardless of the truth of Monsanto’s and Schmeiser’s stories, MacKay also has to rule on various strictly legal arguments presented by each side.
Monsanto argued that even though it believes Schmeiser knowingly obtained Roundup Ready canola from someone, legally it doesn’t really matter. If Schmeiser’s crop contains the gene, it has broken Monsanto’s patent no matter how it got there or whether he knew it was there.
“Whether Mr. Schmeiser knew of the matter or not … matters not at all,” said Roger Hughes.
Schmeiser’s lawyer, Terry Zakreski, said the judge should find Monsanto’s patent invalid because the crop is able to spread itself around through pollen flow. He said patents allow inventors to have exclusive use of an invention, but if an invention moves itself, the inventor should lose his exclusive right, Zakreski said. It’s like a bull that jumps a fence and impregnates a neighbor’s cows: the bull owner can’t make a claim on the calves.
Zakreski also asked the judge to throw out all the scientific evidence Monsanto obtained and used against Schmeiser. Not only is Monsanto’s evidence suspect because it did all its own testing, but it also trespassed and broke the law in other ways to obtain the evidence.
Earlier, Monsanto’s lawyers argued it doesn’t matter how the evidence was obtained. The company doesn’t believe the crop and seed samples were improperly obtained, but even if they were, they should be accepted, Hughes said.
He presented a number of precedents in which evidence was allowed to stand in a civil trial even though there were questions about how it was gathered. In one case, a judge ruled that it didn’t even matter if evidence was stolen.
But Zakreski asked MacKay to disallow the samples not only because he said they were improperly obtained, but also to serve as a warning to companies like Monsanto that they can’t use strong-arm tactics when investigating farmers.
