Tuesday, November 29, 2005


Docket: T-1593-98
Neutral Citation: 2001 FCT 256 [Federal Court Trial, Canada]
[Note: The numbers at the beginning of each paragraph are the paragraph numbers within
the opinion.]
[2] On consideration of the evidence adduced, and the submissions, oral and written, on behalf of
the parties I conclude that the plaintiffs’ action is allowed and some of the remedies they seek
should be granted. These reasons set out the bases for my conclusions, in particular my finding
that, on the balance of probabilities, the defendants infringed a number of the claims under the
plaintiffs’ Canadian patent number 1,313,830 by planting, in 1998, without leave or licence by
the plaintiffs, canola fields with seed saved from the 1997 crop which seed was known, or ought
to have been known by the defendants to be Roundup tolerant and when tested was found to
contain the gene and cells claimed under the plaintiffs’ patent. By selling the seed harvested in
1998 the defendants further infringed the plaintiffs’ patent.
[38] As we have noted Mr. Schmeiser testified that in 1997 he planted his canola crop with seed
saved from 1996 which he believed came mainly from field number 1. Roundup resistant canola
was first noticed in his crop in 1997, when Mr. Schmeiser and his hired hand, Carlysle Moritz,
hand-sprayed Roundup around the power poles and in ditches along the road bordering fields 1,
2, 3 and 4. These fields are adjacent to one another and are located along the east side of the main paved grid road that leads south to Bruno from these fields. This spraying was part of the regular farming practices of the defendants, to kill weeds and volunteer plants around power poles and in ditches. Several days after the spraying, Mr. Schmeiser noticed that a large portion of the plants earlier sprayed by hand had survived the spraying with the Roundup herbicide.
[39] In an attempt to determine why the plants had survived the herbicide spraying, Mr. Schmeiser conducted a test in field 2. Using his sprayer, he sprayed, with Roundup herbicide, a
section of that field in a strip along the road. He made two passes with his sprayer set to spray 40 feet, the first weaving between and around the power poles, and the second beyond but adjacent to the first pass in the field, and parallel to the power poles. This was said by him to be some three to four acres in all, or “a good three acres”. After some days, approximately 60% of the plants earlier sprayed had persisted and continued to grow. Mr. Schmeiser testified that these plants grew in clumps which were thickest near the road and began to thin as one moved farther into the field.
[40] Despite this result Mr. Schmeiser continued to work field 2, and, at harvest, Carlysle Moritz, on instruction from Mr. Schmeiser, swathed and combined field 2. He included swaths from the surviving canola seed along the roadside in the first load of seed in the combine which he emptied into an old Ford truck located in the field. That truck was covered with a tarp and later it was towed to one of Mr. Schmeiser’s outbuildings at Bruno. In the spring of 1998 the seed from the old Ford truck was taken by Mr. Schmeiser in another truck to the Humboldt Flour Mill (“HFM”) for treatment. After that, Mr. Schmeiser’s testimony is that the treated seed was mixed with some bin-run seed and fertilizer and then used for planting his 1998 canola crop.
[102] The evidence of Mr. Schmeiser is that seed for his 1998 crop was saved from seed
harvested in 1997 in field number 2 by his hired man Mr. Moritz. That seed was placed by Mr.
Moritz in the old Ford truck, then located in field number 2, directly from the combine after it
was harvested from the area of that field previously sprayed with Roundup by Mr. Schmeiser.
That “testing” by him resulted, by his estimate, supported by Mr. Moritz, of about 60% of the
sprayed canola plants surviving in the “good three acres” that he sprayed. The surviving plants
were Roundup resistant and their seed constituted the source of seed stored in the old Ford truck.
[106] The 1997 samples, taken by Mr. Derbyshire from road allowances bordering fields number 2 and 5, were used for two grow-out tests, in 1997 at the University of Saskatchewan for Mr. Mitchell, and in 2000 at the university for Dr. Downey. In both tests, with the exception of one of six samples, of the seeds that germinated 100% of the plants survived spraying with Roundup herbicide, i.e., they were Roundup tolerant.
[107] The HFM samples of untreated and treated seed withheld from Mr. Schmeiser were
1) to Mr. Mitchell for Monsanto in 1998 and by him
a) were subject to a “quick test” which indicated to him that both samples tested
were positive for the presence of the patented gene;
b) were subject to a grow-out test by Prairie Plant Systems in January, 1999 with
germinating seed sprayed with Roundup and 30 samples of leaf tissue from surviving plants,
tested by Monsanto US, proved positive for the presence of the patented gene in the DNA of the
leaf tissue; and c) a subsample was sent to counsel for Schmeiser in April 1999 and by him to Mr. Freisen at Winnipeg for a grow-out test, in which 95 to 98% of germinating plants survived
spraying with Roundup; 2) to Mr. Schmeiser in July 1999 which he a) used in part for a grow-out test in his yard, results of which showed 63 to 65% germinating plants survived spraying with Roundup; and b) forwarded to University of Manitoba for testing by Mr. Freisen who recorded results generally similar to those of Mr. Schmeiser; 3) to Mr. Freisen directly from Saskatchewan Wheat Pool in April 2000 for grow-out test from which a very high portion, 95-98%, of germinating seed survived spraying with Roundup.
[116] In the course of their defence, it was urged by defendants that the source of contamination by Roundup resistant canola of their 1996 crop, from which seed was saved for 1997, was uncertain. Indeed so was the source of contamination in the 1997 crop.
[117] A variety of possible sources were suggested, including cross field breeding by wind or
insects, seed blown from passing trucks, or dropping from farm equipment, or swaths blown
from neighbours’ fields. All of these sources, it is urged, could be potential contributors to crossbreeding of Schmeiser’s own canola or to deposit of seeds on his land without his consent. Mr. Borstmayer, who farmed on the same grid road but further north from Bruno than Mr.
Schmeiser’s fields numbers 1, 2, 3 and 4, testified that in the winter of 1996-97 a bag of
Roundup Ready canola seed had fallen from his truck in Bruno and broken open, and some seed
was lost before he put the broken bag back on his truck to be hauled past Schmeiser’s fields to
his own. Further, after harvesting his 1997 crop he trucked it to the elevator on the grid road to
Bruno, past Schmeiser’s fields, with at least two loads in an old truck with a loose tarp. He
believes that on those journeys he lost some seed.
[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, an expert witness appearing for the
plaintiffs, 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. His view was supported in part by evidence of Dr. Barry Hertz, a mechanical
engineer, whose evidence scientifically demonstrated the limited distance that canola seed blown from trucks in the road way could be expected to spread. I am persuaded on the basis of Dr. Downey’s evidence that on a balance of probabilities none of the suggested possible sources of contamination of Schmeiser’s crop was the basis for the substantial level of Roundup Ready
canola growing in field number 2 in 1997.
[Note: The factual findings of the Federal Trial Court, Canada, set forth above in the excerpted
paragraphs, were upheld at the Federal Court Appeal, Canada and at the Supreme Court of
Canada. These factual findings are the facts of the case.]

The two opinions from the higher courts of Canada are as follows:
Federal Court Reports
Monsanto Canada Inc. v. Schmeiser (C.A.) [2003] 2 F.C. 165
Date: 2002/09/04
Docket: A-367-01
Neutral citation: 2002 FCA 309 [Federal Court Appeal, Canada]
Monsanto Canada Inc. v. Schmeiser
Neutral citation: 2004 SCC 34. [Supreme Court Canada]
File No.: 29437.
2004: May 21 [Date the opinion issued.]
The Supreme Court of Canada reversed the Federal Trial Court and the Federal Appeal
Court on the issue of remedies (damages). As a result, although Mr. Schmeiser was legally
found to have infringed the patent, Mr. Schmeiser was not ordered to pay damages to Monsanto
Canada, Inc.

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