Monsanto Lawyer Suggests New Standard For Suing Farmers

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To spray or not to spray? That may be the question on which Monsanto's arguments against farmers hangs.

To spray or not to spray? That may be the question on which Monsanto's arguments against farmers hangs.

For years, the biotech giant Monsanto has provoked outrage among its critics for suing farmers who save and replant seeds from the company's patented Roundup Ready crops, such as soybeans and canola.

Some of that outrage is based on a decade-old case in Canada, in which a court ruled that a farmer, Percy Schmeiser, violated Monsanto's patents by planting canola that he "knew or ought to have known" contained Monsanto's Roundup Ready gene. Schmeiser argued that he didn't want the gene in his fields, and that it had become incorporated into his canola via wind-blown pollen.

Monsanto won that case, but the company might have been better off losing because the victory has been a public relations disaster. Around the world, many people now believe, mistakenly, that Monsanto is suing farmers for growing patented seeds that wandered into their fields without the farmers' knowledge and against their will.

So it caught our attention last week when a lawyer representing Monsanto in federal court seemed to admit that suing Schmeiser had been a mistake that the company would not repeat.

The lawyer for Monsanto, Seth Waxman, was being questioned by Judge William Bryson, from the U.S. Appeals Court for the Federal Circuit. In the case, a group of mostly organic farmers had hauled Monsanto into court, claiming that they are being damaged by the possibility that Monsanto might sue them. Bryson wanted to know what actions would convince Monsanto to sue a farmer, and Waxman came up with this:

"In the real world, Judge Bryson, the cases Monsanto brings are cases in which it has come to learn that the farmer is not purchasing any Roundup Ready seed, but is spraying his fields with Roundup, and the plants are surviving. If the farmer were not spraying, by definition he wouldn't be taking advantage of Monsanto's technology."

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A farmer holding Monsanto's Roundup Ready soybean seeds at his family farm in Bunceton, Mo.

A farmer holding Monsanto's Roundup Ready soybean seeds at his family farm in Bunceton, Mo.

Under Waxman's common-sense standard, Monsanto wouldn't have brought its case against Schmeiser. That's because in that case, the company did not produce any evidence that Schmeiser was taking advantage of Monsanto's technology by spraying his crop with Roundup.

We called several lawyers to see whether Waxman's statement in court had any legal standing and would prevent any Schmeiser-style lawsuits in the future. They tell us that Monsanto isn't bound by Waxman's words, because he's just a hired lawyer thinking on his feet in a courtroom, not a company executive.

The judges in this case, however, might conceivably take up this point in their eventual decision. If they follow Waxman's lead and write, for instance, that farmers don't infringe Monsanto's patents unless they are "taking advantage" of those genes and getting some benefit from them, it would be more significant. But Daniel Ravicher, who argued the case against Monsanto for the group of organic farmers, says even such an opinion wouldn't completely change the legal landscape, because other judges, in other courts, still could disagree.

Meanwhile, the battle continues. The U.S. Supreme Court is about to take up another high-profile Monsanto seed case involving patent infringement. Oral arguments are scheduled for February 19.

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Major 5 Myths of Genetically Modified Seeds, Busted

Having just stepped into the shouting match more than patents on genetically engineered crops, there are a number of little items that I, as well, would like to get off my chest.

I say little points. I'm not speaking about today's big sizzling issues : Whether genetically modified organisms GMOs need to be labeled, or bring about cancer in rats, or may well improve the lives of poor farmers in Africa none of that.

This is about one thing straightforward : Seeds of GMOs. Numerous myths have grown up all around these seeds. Like most myths, they are inspired by reality. But they've wandered off into the planet of fiction.

Central Illinois corn and soybean farmer Gary Niemeyer readies his genetically modified seed corn for spring planting at his farm near Auburn, Ill.

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Myth one : Seeds from GMOs are sterile.

No, they will germinate and expand just like any other plant. This thought presumably has its roots in a actual genetic modification (dubbed the Terminator Gene by anti-biotech activists) that can make a plant create sterile seeds. Monsanto owns the patent on this strategy, but has promised not to use it.

Now, biotech businesses and Monsanto in unique do appear to want that this notion were real. They do their very best to hold farmers from replanting the offspring from GMOs. But they do this since, in truth, these seeds will multiply.

Myth two : Monsanto will sue you for growing their patented GMOs if traces of these GMOs entered your fields by wind-blown pollen.

This is the idea that I see most generally. A group of organic and natural farmers, in fact, not long ago sued Monsanto, asserting that GMOs might contaminate their crops and then Monsanto may well accuse them of patent infringement. The farmers couldn't cite a single instance in which this had happened, even though, and the decide dismissed the case.

The idea, even so, is inspired by a genuine - world occasion. Back in 1999, Monsanto sued a Canadian canola farmer, Percy Schmeiser, for expanding the company's Roundup-tolerant canola with no spending any royalty or " technologies fee." Schmeiser had by no means purchased seeds from Monsanto, so people canola plants clearly came from somewhere else. But the place ?

Canola pollen can move for miles, carried by insects or the wind. Schmeiser testified that this need to have been the bring about, or GMO canola might have blown into his area from a passing truck. Monsanto mentioned that this was implausible, simply because their exams showed that about 95 percent of Schmeiser's canola contained Monsanto's Roundup resistance gene, and it is impossible to get such substantial ranges by way of stray pollen or scattered seeds. On the other hand, there is tons of confusion about these exams. Other samples, tested by other men and women, showed decrease concentrations of Roundup resistance but however more than 50 % of the crop.

Schmeiser had an explanation. As an experiment, he'd truly sprayed Roundup on about a few acres of the field that was closest to a neighbor's Roundup Prepared canola. Several plants survived the spraying, showing that they contained Monsanto's resistance gene and when Schmeiser's employed hand harvested the area, months later, he kept seed from that portion of the area and employed it for planting the upcoming year.

This convinced the judge that Schmeiser intentionally planted Roundup Ready canola. Schmeiser appealed. The Canadian Supreme Court ruled that Schmeiser had violated Monsanto's patent, but had obtained no advantage by performing so, so he did not owe Monsanto any income. (For much more specifics on all this, you can read the judge's determination. Schmeiser's web page includes other paperwork.)

So why is this a myth? It is surely real that Monsanto has been going immediately after farmers whom the organization suspects of using GMO seeds with no spending royalties. And there are a lot of instances which include Schmeiser's in which the company has overreached, engaged in raw intimidation, and manufactured accusations that turned out not to be backed up by evidence.

But as far as I can inform, Monsanto has under no circumstances sued anybody in excess of trace quantities of GMOs that had been introduced into fields simply via cross-pollination. (The company asserts, in reality, that it will spend to get rid of any of its GMOs from fields exactly where they will not belong.) If you know of any case in which this in fact took place, please allow me know.

Myth 3 : Any contamination with GMOs helps make natural meals non- natural and organic.

The organic and natural rules prohibit the "use" of genetic modification in natural agriculture. But if pollen blows from genetically modified corn into your natural and organic cornfield and pollinates a handful of kernels, you are not " employing " it at least according to the USDA's interpretation of individuals guidelines. In fact, a great deal of the natural and organic corn that's fed to organically raised chickens or pigs, does include some degree of GMOs.

That mentioned, organic and natural producers commonly do test to reduce the presence of GMOs, because their clients do not want them. It really is generally not as well tricky to keep contamination to a very low level. But there are crops especially canola and corn in which it really is extremely tough to remove it entirely.

Myth four : Ahead of Monsanto received in the way, farmers usually saved their seeds and re- used them.

By the time Monsanto received into the seed company, most farmers in the U.S. and Europe have been previously relying on seed that they bought each and every yr from older seed businesses. This is in particular accurate of corn farmers, who've been growing just about solely commercial hybrids for far more than half a century. (If you re-plant seeds from hybrids, you get a mixture of inferior types.) But even soybean and cotton farmers who don't expand hybrids had been moving in that direction.

This shift started off with the rise of commercial seed companies, not the advent of genetic engineering. But Monsanto and GMOs absolutely accelerated the trend significantly.

Myth 5 : Most seeds these days are genetically modified.

Essentially, amazingly few are. Here is the complete list of food crops for which you can find GMO types : Corn, soybeans, cotton (for oil), canola (also a source of oil), squash, and papaya. You could also incorporate sugar beets, which are not eaten right, but refined into sugar. There is also GMO alfalfa, but that goes to feed animals, not for sprouts that people today eat. That leaves rather a great deal of your garden untouched.

GMO versions of tomatoes, potatoes, and rice have been created and accepted by government regulators, but they are not commercially available.

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Farmer Tackling Monsanto's Seed Policy Gets A Day In Supreme Court

Several people protest Monsanto's enterprise practices, like this Greenpeace protester spraying paint on a firm investigation soybean field in Iowa.

Quite a few individuals protest Monsanto's business practices, like this Greenpeace protester spraying paint on a organization study soybean area in Iowa.

Why do so quite a few people hate Monsanto?

Is it simply because this multinational corporation pioneered some enormously profitable genetically engineered crops, like corn, soybeans, and cotton?

Possibly, but I suspect that substantially of the passion is inspired by Monsanto's hard -line technique to ownership of those crops. Monsanto claims individuals seeds and all offspring of these seeds as its intellectual property. Farmers aren't permitted to conserve and replant any part of their harvest if they do, Monsanto takes them to court and demands substantial damages. Critics call the company bullying and ruthless.

Ruthless or not, in just about all scenarios, courts have found Monsanto's strategies perfectly legal. Now, in a move that shocked many observers, the U.S. Supreme Court has determined to take a seem.

The court announced earlier this month that it will hear the arguments of a 74- year - old farmer in southwestern Indiana who says that Monsanto's far-reaching claims are unfair and illegal.

The specifics of this case are intriguing, and slightly different from the earlier "farmer v. Monsanto" cases. This farmer, Vernon Hugh Bowman, has been a loyal client for Monsanto's "Roundup Prepared " soybeans but only for the primary developing season, in the spring and early summer. Soon after he harvested that crop, Bowman occasionally attempted to squeeze in a second harvest.

That second harvest was no sure thing, so he didn't invest a lot of cash in it. He planted the least expensive seeds he could uncover. From time to time he purchased ordinary soybeans from the community grain elevator or another farmer, occasionally he applied seeds he'd saved. (Peruse the full story on your own in the farmer's account and Monsanto's response.)

But here is the issue : Monsanto's soybeans account for 94 percent of all the soybeans grown in Indiana. So nearly all the soybeans that Bowman could get his hands on contained the patented "Roundup Ready " gene.

Bowman went ahead and planted them anyway, without having spending Monsanto's " technology fee." He also took benefit of the gene. It allowed him to spray Roundup (or a generic version of the exact same weedkiller), which produced controlling weeds reasonably low-cost and uncomplicated.

Monsanto identified out and took Bowman to court. A federal judge agreed that Bowman had broken the law and ordered him to pay $84,000. An appeals court affirmed that decision.

The arguments and counter-arguments that the two sides have submitted to the Supreme Court mainly emphasis on the attain of Monsanto's patents specifically, whether Monsanto genuinely can demand a royalty for the planting of any soybean containing its patented genes.

But there's a useful problem, as well, and it obviously troubled Richard Youthful, the federal judge in Indiana who first noticed this situation. "Monsanto's domination of the soybean seed market," he wrote, signifies that all the affordable "commodity" soybeans that farmers might use for seed are now encumbered by patents.

Youthful observed Bowman's criticism of the "monopolizing results " of Monsanto's patents "compelling," but the decide basically threw up his hands. Discovering a remedy, he wrote, would be a matter for policymakers, "but this court does not make policy instead, it interprets and enforces the law, which, in this situation, does not support Bowman."

It will be appealing to see regardless of whether the Supreme Court decides to wade into this policy query. The case won't be noticed, or decided, right up until sometime subsequent yr.

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