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Monsanto wins legal battle, may lose war

By: Laura Rance

14/11/2009 1:00 AM | Comments: 6

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One of the first lessons toddlers learn in the sandbox is when you want to play with someone else's toys, you play by their rules.

It's a lesson a few farmers in Ontario are learning the hard way after being found guilty of infringing on Monsanto's patented Roundup Ready technology.

Not only have the courts decided they must repay any profits derived from growing Roundup Ready soybeans without a licence from Monsanto, they must also pay a significant portion of the company's costs for taking them to court -- amounts ranging from $9,000 to $63,000 per individual.

As well, these four farmers are among the first to be confronted with Monsanto's new Violator Exclusion Policy. They will be denied all access to Monsanto's current and future technologies -- forever.

The same will apply to any future violators who refuse to settle out of court.

On one hand, it's hard to be critical of a company for protecting its property. Roundup Ready crops, which are genetically modified so farmers can apply the weed killer glyphosate to their fields, have been available to farmers for a decade and they've proven wildly popular. Fifty-two per cent of Canada's canola crop this year carried the Roundup Ready trait.

It is well known this technology is protected by patent, which means farmers must sign a "technology use agreement" and pay a fee to Monsanto over and above the seed cost.

As well, farmers are forbidden from saving and replanting any of the harvested seed. Other technology suppliers have developed similar patent protection policies.

The courts have upheld Monsanto's efforts to enforce its patents, all the way to the Supreme Court of Canada. So the question "what were they thinking?" comes to mind when considering the plight of these poor saps in Ontario who were apparently trying to do an end-run around Monsanto while hitching a free ride from their neighbours who paid for the technology.

But the scenario is raising questions over whether the company has the moral authority to deny access to something so fundamental as seed.

True, there are alternative sources of soybean seed for these growers to use, but their list of choices has shortened considerably in recent years with all the consolidation in the seed business -- much at the hands of Monsanto.

This case, which is still under appeal, is unfolding just as questions are mounting in the United States about whether Monsanto has amassed too much market power, so much so that it is inhibiting competition and stifling innovation in the seed and crop trait business.

The U.S. government served notice earlier this year it would be reviewing certain sectors of agriculture, including the seed business, for evidence of anti-competitive behaviours. Two troubling indicators are that the cost of seed offering herbicide tolerant or insect resistant traits continues to rise more than a decade since its introduction -- and it's getting harder for competition to get into play.

The American Antitrust Institute (AAI), an independent Washington-based non-profit competition watchdog, has just published a white paper saying a closer look at Monsanto would be a good place to start.

The paper notes Monsanto's "acquisition spree" which saw it buy up nearly 40 seed and ag biotech companies since the late 1990s. It now owns four of the 13 major patented techniques, with the rest owned by seven other companies and universities. Because it licenses its technology out to other seed suppliers as well, it dominates 75 to 95 per cent of the market for specific traits in corn, soybeans and cotton.

The AAI also finds it significant that Monsanto has been involved in about three-quarters of approximately 60 agricultural biotechnology litigations over the last 10 years, a statistic only partially explained by its market dominance.

The institute says the transgenic seed business is an industry in which patent laws designed to foster innovation are at loggerheads with antitrust law designed to promote competition.

"It is indisputable that Monsanto possesses market power in innovation markets, in markets for genetic traits, and traited seed," the AAI says. "What would likely be the centerpiece of any antitrust investigation into Monsanto's practices is whether the agricultural biotechnology giant has exercised its market power to foreclose rivals from market access, thereby slowing innovation and adversely affecting prices, quality, and choice for farmers and ultimate consumers of seed products."

The United States, unlike Canada, tends to take antitrust and competition issues seriously. Maybe the rules of this sandbox are in for a shakeup.

Laura Rance is editor of the Manitoba Co-operator. She can be reached at 792-4382 or by email:

laura@fbcpublishing.com

Republished from the Winnipeg Free Press print edition November 14, 2009 B6

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6 Commentscomment icon

The ones who get sued, fined and banned are the ones who blatantly steal. It's not because of some kind of accident, or pollen drift or the odd seed here or there. We're talking about commercial purity levels here. If you don't actively and purposefully use Monsanto genetics you have nothing to be afraid of, people who say otherwise are just fear mongering and smearing the company.

Monsanto's Australian Technology User Agreement lets the company sue GM farmers who sell, save or give away patented Roundup Ready GM canola seed. And the company has the right to ''inspect, take samples and test all of the grower's owned and/or leased fields and storage bins'' and may take copies of all operational documents for three years after a grower buys any GM canola seed. GM growers who want to sell their farms must also require the new owners to sign a contract with Monsanto! What will that do to land values?

But even non-GM growers can be caught in this net. Monsanto has sued thousands of North American farmers who never bought GM seed, for allegedly stealing and growing patented GM varieties. Facing bankruptcy, most settle out of court and are gagged by the agreement.

Suing non-GM farmers was so widespread that in August 2008 California Governor Arnold Schwartzenegger agreed that GM crop contamination is inevitable and passed a law to limit the GM industry's powers to sue, protecting non-GM farmers from GM contamination lawsuits. (See: http://info.sen.ca.gov/pub/07-08/statute/ch_0401-0450/ch_424_st_2008_ab_541) North and South Dakota and Montana are also limiting GM company access to farms.

Canada, Australia and the other US states should follow California instead of exposing their farmers to the legal predations of cashed up GM companies.

If someone gets caught shoplifting in a store and the owner decides to then bar that person from the store the storeowner is fully within his legal and moral rights to do so.

I can't believe all these people who feel sorry for these thieves who stole from Monsanto or think they did nothing wrong just because it's a successful company.

Rance is particularly offensive with this line, " But the scenario is raising questions over whether the company has the moral authority to deny access to something so fundamental as seed."

It's not the seed, it's a particular gene in a particular type of seed that Monsanto has a patent on. A gene that Monsanto invented, and Rance wants the company to give it away for free? They are no more a charity than Rance is. Maybe she should stop charging the free press for her columns.

If farmers want to use Monsanto’s technology they should darn well pay for it. I don’t think the honest ones that do think very much of the thieves who don’t.

And what if a kid has his own private sandbox and some other kid throws his toys into it, then by whose rules should the kids play?

Monsanto's patented seeds easily find themselves in non Monsanto seed planting farmers'private fields, yet these same farmers must freely accept the trespass, even if it makes their crops less valuable. In other words, if Monsanto's patented GMO seeds contaminate an organic or non-GMO specialty growers' crops, Monsanto is not liable.

On the other hand, should a farmer want to plant those same seeds which came onto his land through no action of his own, Monsanto can sue him for planting them.

This leads to a very interesting situation for livestock producers once Monsanto starts patenting livestock. If for example a Monsanto patented bull jumps a fence and impregnates a farmer's cow, who owns the calf as the calf will have the patented genes? If it works out the same way as it does with seed, the farmer will either have to forfeit the calf to Monsanto or kill it to avoid Monsanto's prosecution.

Back to the farmers who are forbidden to plant Monsanto's seed in the future, they shouldn't lose any sleep. In the end avoiding paying Monsanto's ransom for renting its patented traits will be more profitable.

I farm in the US and have not planted a single Monsanto patented seed since GMO's first came out. It requires more management, but at the end of the day I lost nothing by not paying the Monsanto ransom plus I can hold my head high.

Monsanto in all their efforts to reinvent itself from it's heyday as a maker of PCB's and Agent Orange is only digging themselves into a bigger hole of horrors. When are corporations going to realize that there is more to success than money? When we stop buying their products...
Hate Phillip Morris? Then stop drinking Miller Beer and Kraft Macaroni. It's an evil world out there that's certain!

Monsanto's list of evils both business and environmental are legendary. There is nothing good about this company. The Philip Morris of agriculture and food additives.

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