The Rural Voice, 2001-06, Page 6IL
Carter's view far from
the truth
Jettrey Carter views the lawsuit of
Monslnto vs. Percy Schmeiser as a
case of Monsanto recklessly spread-
ing Roundup Ready canola onto
Schmeiser's farm. ("Farmers will pay
for Monsanto suit" May 2001). This
is so far from the truth of the situa-
tion. that it borders on fabrication.
Evidence presented at the trial, is
that in 1998, Schmeiser had over
1.000 acres of 95 to 98 per cent pure
Roundup Ready® (RR) canola. This
level of purity is very close to
certified standards. or what the levels
in brown bagged canola sold illegally
might be. Can it be true that the
Schmeisers had been "improving the
genetics of their canola without the
help of Monsanto..." with that level
of parity? Schmeiser claims he has no
use for the RR gene, but the evidence
speaks to the contrary.
Carter accepts Schmeiser's
assertion that "We never asked for
this". To have this level of purity
would indicate that he did want it and
got it. I find it impossible that such a
high level of purity could be the
result of wind -carried pollen, bee -
carried pollen or seeds blown off a
truck. In order to get 95 per cent RR
plants in 1,000 acres (at 5 lbs./ac.
seeding rate) requires in the
neighbourhood of 4,750 lbs. to be
blown off trucks into his field evenly.
I find it very hard to feel sorry for
Schmeiser and his $200,000 drop in
his retirement savings. He knew that
he had Roundup Ready in his field(s),
yet defied anyone to enforce the rules
regarding the protection of property
rights. Schmeiser's appeal for more
money (re: ad on pg. 46 May 2001),
strikes me as being a way to let other
people pay for his mistakes, poor
judgement and his apparent lack of
respect for other companies' property
rights.
2 THE RURAL VOICE
Feedback
Carter assists Schmeiser by trying
to disguise this lawsuit as a David vs.
Goliath scenario. I, however. would
do exactly what Monsanto did if I
was the developer and owner of
Roundup Ready technology.0
Peter Rowntree
Hill et Hill Farms Ltd.
R.R. I, Varna. ON
Monsanto's win
could be costly for
company
Jeffrey Carter has commented
extensively on the Monsanto vs.
Schmeiser decision of Mr. Justice
Peter MacKay with the conclusion
that farmers will pay for the results of
this decision. I offer the following as
an opposing opinion.
While I believe Mr. Carter is not,
and I know that I am not, a lawyer, I
have had the experience of many
days at Federal Court hearings, over
motions, relevant appeal hearings,
and two tax cases that applied to me
directly and have several pages in the
Dominion Tax Cases that I can
call mine. During these cases I had
the good fortune to be allowed to be
the research assistant to counsel,
which has given me valuable
experience within the Federal Court
of Canada system.
I have read the decision of
MacKay, J. with interest at the
website http://www.fct-cf.gc.ca/
bulletins/whatsnew/T 1593-98.pdf
I was hoping that Mr. Schmeiser
would win his case as we heard of its
progress through the media. That was
not to be, and in my opinion, there
is not much room for an appeal
because Mr. Justice MacKay has
been careful in his treatment of the
evidence and the wording of the
decision. There may be other material
within the transcripts that has not
been considered that will support an
appeal.
This case was framed with a very
narrow boundary, which applied only
to patents and the rights of patent
holders and their control over those
patents. The main section of the
Patent Act (R.S.C. 1985,c. P-4) that
Monsanto relied on was section 42
which Mr. Justice MacKay included
in the judgment which stated "that
the patentee has 'the exclusive right,
privilege and liberty of making,
constructing and using the invention
and selling it to others to be used...'
for the term of the patent." The term
of the patent in this case was 17 years
from the time of the granting and
expires on February 23, 2010.
Mr. Justice MacKay accepted as
fact the evidence as presented by Mr.
Schmeiser and his hired help that
they had sprayed Roundup® on the
three acres of their canola field that
bordered a major road in 1997. This
part of the field was combined and
the yield was put into the old Ford
truck and left in the truck in the shed
until spring. The truck was then
driven to the local seed cleaning
facility where the seed was cleaned
and used for some of the 1998 crop
year.
It was the finding of Mr. Justice
MacKay that this was a violation of
the patent in that "Knowledge of the
nature of that seed by Moritz, the
hired hand, is attributable to Mr.
Schmeiser and to the corporate
deferdant. Mr. Schmeiser must be
presumed to know the nature of the
seed stored in the truck by Mr. Moritz
who acted under Schmeiser's general
instructions in harvesting the crop."
Further, included in the decision
as fact, was that "Other farmers who
found volunteer Roundup tolerant
plants in their fields, two of whom
testified at trial, called Monsanto and
the undesired plants were thereafter
removed by Monsanto at its
expense."
Mr. Justice MacKay, says this
about the stray bull situation and
pollen drift and it is clear in both
meaning and intent, since the
patented gene is identifiable:
"I do not agree that the situation is
comparable to the 'stray bull' cases
that recognize that the progeny of
stray bulls impregnating cows of
another belong to that other, and that
the owner of the straying bull may be
liable in damages that may be caused
to the owner of the cows. Further, the
circumstances here are not akin to
those cases that the defendants urge
are part of the larger law of
admixture, where property of A
introduced by A without B's