The concept of patent law has been debated for years, but it was not until the patenting of living organisms came about that patent lawsuits became extremely prevalent in the news and courtrooms. Monsanto Inc. brought the patenting of plants to the forefront of media worldwide. Monsanto’s mission is about “producing more, conserving more, improving lives. That’s sustainable agriculture. And that’s what Monsanto is all about.” In order to grow more food worldwide and feed the ever-increasing population, Monsanto works “alongside farmers to do exactly that. We do this by selling seeds, traits developed through biotechnology, and crop protection chemicals. ” One of the most popular chemicals developed by Monsanto is its Roundup herbicide. This herbicide works in conjunction with Monsanto’s genetically modified (GM) Roundup-Ready seeds. These GMO’s are able to resist the harmful effects of the herbicide in order to ensure that farmer’s crops continue to flourish while the weeds around them die (Exhibit 1). While the vast majority of farmers now use various forms of herbicides, pesticides, and GMO’s, there remains a small portion of farmers that believe organic farming is a healthier route. Percy Schmeiser of Saskatchewan, Canada is one of these farmers. Schmeiser farmed organically for over 50 years before tests performed in 1998 revealed that his canola crop was contaminated with Roundup Ready canola. While the origin of the seeds is unclear, the court believes that the seeds most likely blew in from trucks bringing Roundup Ready seeds to surrounding farms. Monsanto sued Schmeiser for planting their seeds without a license. The case revolved around the question of whether Schmeiser infringed on Monsanto’s patent rights. While the court ruled in Monsanto’s favor, Schmeiser was not forced to pay any remedy, but still paid thousands in court fees and had to burn all of his canola seed. In this paper I will analyze the case of Monsanto Canada Inc. vs. Percy Schmeiser. I will then compare the courts ruling with how Rawls and Nozick would have ruled on this case in terms of their theories of justice. Despite the conflicting views of Rawls and Nozick, I find that both theorists would rule in favor of Percy Schmeiser being the rightful owner of the canola seeds in Monsanto Canada Inc. vs. Percy Schmeiser.
Monsanto v Schmeiser is known as “a landmark decision concerning farmer liability and transgenic contamination.” The court documents explain that Monsanto (at the time) licensed Roundup Ready Canola (Exhibit 2)
to farmers at a cost of $15 per acre. The farmers then had to sell their crops to Monsanto approved retailers. Percy Schmeiser never purchased Roundup Ready canola, nor did he ever spray Roundup in order to increase the profits of his farm. Instead, he believed the crops by the street had been contaminated, and thus sprayed Roundup on a small portion of these crops. The spraying proved that some of his canola had been contaminated. Percy then unintentionally combined this contaminated seed with the seed that he had been developing on his own over the years. While Percy did continue to use his canola seed, he never intentionally used any that he knew contained Roundup Ready genes. Therefore, he felt that he did not infringe on the patent because he continued using his own seed and never sprayed herbicides to increase profits. When Monsanto came to surrounding farms to inspect licensed Roundup Ready farmers, they chose to test Percy’s plants as well. Unfortunately for Percy, the tests revealed that “95 to 98 percent of his 1,000 acres of canola crop was made up of Roundup Ready plants.”
Monsanto sued Percy Schmeiser on the grounds that he had infringed on Monsanto’s patent. The trial judge found the court in favor of Monsanto, deciding that the patent should hold even if Percy experienced difficulty distinguishing between canola plants containing the patented genes and those without it when replanting his farm. Patents are allowed on plants assuming that the gene is chimeric—meaning that it does not exist in nature on its own—and that the chimeric gene is permanently inserted into the plant’s own DNA. Once these measures are met, the patent covers the offspring of the plant that the chimerical gene is growing in. Schmeiser tried to appeal these patent rules and the Monsanto case by claiming that the patent only covers the gene and cell, not the plant and seed. While Schmeiser used the case of Harvard Mouse where mammals were proved unpatentable, the court found that plants can be patented, only mammals cannot.  Once the court established the ability to patent plants, they moved to determine whether Schmeiser truly used this patented material and deprived Monsanto of the monopoly patents allow the inventor. The appellant court determined that yes, he did infringe on their monopoly by not paying the licensing fee. While Schmeiser claims that he did not know combining the contaminated canola with non-contaminated seed would grow round-up ready seed, the court ruled that Schmeiser had the obligation to know. The patented product that Percy Schmeiser grew was then used for business purposes, also an infringement of Monsanto’s patent. The judge ruled that the fact that Schmeiser never took advantage of the patented crop by spraying Roundup was irrelevant to the case because he still used the crop and had the ability to take advantage of its benefits in the future. After further analyzing Percy Schmeiser’s use of Monsanto’s seed, the court ruled in favor of Monsanto. Percy infringed on the Patent Act.
Despite losing the trial court judgment and that of the appeal court, Schmeiser did not experience as great of a loss as he potentially could have. The Patent Law permits two types of remedies: damages and accounting of profits. Monsanto chose to seek accounting of profits, thus making them ineligible for damages. In the final portion of the trial the court determined the amount of the infringer’s profit “which is causally attributable to the inventor.”  Fortunately for Schmeiser, his lack of use of the herbicide Roundup on his crops ensured that he made no additional profits due to the GMO’s presence in his fields. The appeal courts decision led to both Schmeiser and Monsanto having to incur their own court costs. Schmeiser also had to destroy his canola seed in order to ensure that no further infringement occurred.
The outcome of Monsanto v Schmeiser hit the news like wildfire. The case’s relevance to the patenting of living organisms and the occupation of farming caused activists everywhere to speak out. With urbanization becoming more common throughout the world and crop production being performed in labs, the farming industry is in a state of decline. From 1976 to 2004, the percent of farmers out of the total North American workforce declined from 4.2% to 1.9% (Exhibit 3).
Even a smaller percent of the workforce farms like original farmers did. Rather than developing strong and sustainable seeds over generations, farmers now pay for genetically modified seeds that help ease farming. The percent of land used for organic farms represents only a minimal portion of total land used for agriculture—at only 0.66% in 2007 in North America (Exhibit 4). Percy Schmeiser is one of few farmers left who truly believes in organic farming. The loss of his case against Monsanto put a huge toll on him financially in both the long term and short term. The court forced him to dispose of the canola seed he had been altering and developing for decades, while also imposing fees of over $200,000 on Schmeiser. Many activists and citizens of the US and Canada reject the outcome of this case and believe that Percy is entitled to his crop even if cross contamination occurred. They worry that patented crops and the ability of large corporations like Monsanto to sue small farms will completely eliminate the lifestyle and survival of organic farmers (Exhibit 5). While the court ruled in favor of Monsanto despite the public opinion, how would various theories of justice rule on the Monsanto v Schmeiser case? I will now analyze the potential outcomes of this case through the eyes of Robert Nozick and John Rawls.
John Rawls focuses his theories on justice being fairness. His idea of the “veil of ignorance”—or the idea that when determining principles of justice no one knows what their position in society will be—is the premise of his idea of justice as fairness. This ‘original position’ is the grounds for his two basic principles regarding distribution rights, thus the principles that apply directly to the question at hand—who rightfully owns the crops in Schmeiser’s field? The first principle of justice says “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” and the second states that “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all.” Rawls also argues that the first principle always takes precedence over the second once sufficient material well-being has been established—in other words, liberty is essential in a just society. Rather than focusing on people’s rights and what they deserve, Rawls believes that people’s rights arise from the principles of justice being implemented. By rejecting utilitarianism, he says that a deontological view must be put in place with the principles of justice in mind. His principles create rights by thinking of duties of fairness rather than by thinking of consequences.
In Monsanto v Schmeiser, Rawls would view Schmeiser as being the rightful owner of the seeds and crops, therefore rejecting the outcome of the courts. For one, Rawls would view genetically modified crops as being a threat to the second principle of justice. With the monopoly that GM crops and Monsanto create, inequalities are for the benefit of one group and not the masses. Furthermore, the benefits of the GM crops are bound to increase at a disproportionate rate in favor of the inventor, thus creating a less just society in Rawls’ eyes. In fact, Rawls could even extend his argument in favor of Schmeiser by saying that he has the right to save his seeds even if there is contamination due to a deontological reason of fairness. GM crops do not allow for people to keep their essential liberties. While it is true that GM crops may enhance overall utility, there is good reasoning behind Rawls’ rejection of utilitarianism. If all people were to stand under the veil of ignorance, there is no doubt that they would recognize the many dangers that could occur to various individuals once the veil was removed. Genetically modified crops are an example of a danger. While they may maximize utility by providing easier growing for farmer’s and thus a plethora of food, they also harm the poor farmers who live off of growing organic crops. Schmeiser lived off of growing crops, but when GM crops blew into his fields and he replanted his seeds he lost all rights to the plants grown. Furthermore, he lost all rights to the canola seed that he had been modifying for over 40 years. Monsanto thus deprived Schmeiser of his liberty, and used their economic superiority to put Schmeiser in an even more inferior economic position.
While Rawls’ theory of justice is based on fairness, Nozick’s theory is that of entitlement. Nozick’s Entitlement Theory focuses on justice in holdings and how to determine if a person’s holding is just. He proposes three main rules regarding when a holding is just: acquisition, transfer, and rectification. These are described as “1. A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to that holding 2. A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding 3. No one is entitled to a holding except by applications of 1 and 2.” Rectification is therefore the way that one goes about returning a holding not acquired through steps 1 and 2 to its rightful owner. Rather than judging distribution on a structural principle, Nozick views the entitlement theory of justice in distribution as focusing on history. Who should own what depends on how the ownership originally came about. Robert Nozick extends his theories to include acquisition under patent law. He contends that “the acquisition of property through labor is legitimate if and only if other persons do not suffer thereby any net harm. Net harm for these purposes would include such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor.” Despite the distinct differences between the Rawls’ and Nozick’s theories of holdings, I find that Nozick’s entitlement theory would rule in the same manner as Rawls’ theory of justice as fairness—in favor of Schmeiser.
While Monsanto did not give their GM seed to Schmeiser as a gift, a transfer of ownership still occurred. While it is unclear whether Nozick would view this transfer as just, I believe that he would. Seeing as Nozick stresses original acquisition being someone acquiring a material from nature, a just transfer would most likely include the wind (a part of nature) blowing seed onto Schmeiser’s farm. Therefore, whether Schmeiser knew the plant was Roundup ready or not is completely irrelevant. The minute the seed was brought to his property by natural causes it was rightfully his through the principle of just transfer. Furthermore, even if Nozick would not rule that the transfer was just, his views of patent law would not allow Monsanto to punish Schmeiser by making him poorer through a lawsuit. Seeing as Roundup Ready canola is property obtained through labor, the acquisition of this property is just only if the person it is being acquired from doesn’t suffer “net harm.” In this case the individual did suffer net harm. Schmeiser lost a seed he had been working on developing for decades, and was forced into debt in order to pay legal fees that would not have been imposed on him if Monsanto did not sue. Nozick’s Entitlement Theory supports Schmeiser in almost all respects. The harm he experienced was unjust, and therefore should be rectified.
Since the case of Monsanto v Schmeiser, Percy Schmeiser continually makes public appearances in order to stress the harm that large companies like Monsanto impose on the farming industry. While the law did not side with Percy Schmeiser in this case, ethics of justice would have. This makes me question whether the legal system is just in itself, and if there are alterations that should be made to the law as technologies and companies continue to expand and develop. The monopolies that patents allow are not necessarily bad in that they promote innovation, but when they begin to harm individuals and certain industries around the world I am forced to reevaluate their efficacy. Percy Schmeiser’s case is just one of many that government’s need to analyze when considering policy changes.
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 The Supreme Court of Canada. “Case Law Analysis: Monsanto v Schmeiser” in Journal of Environmental Law, 17.1. 2005, p. 84.
 The Supreme Court of Canada, p. 83.
 Ibid. p. 84.
 Ibid., p. 84.
 Ibid., p. 84.
 The Supreme Court of Canada., p. 85.
 Ibid., p. 91.
 Ibid., p. 91.
 The Supreme Court of Canada, p. 92.
 World Resources Institute. Earth Trends. Creative Common License, 2007. <http://earthtrends.wri.org/searchable_db/index.php?theme=8>
 World Resources Institute.
 John Rawls “A Theory of Justice” in Justice A Reader, ed. Michael J. Sandel, p. 203.
 Ibid., p. 214.
 Lacewing, Michael. Rawls and Nozick on Justice. Routledge, Taylor & Francis Group. Web. <http://cw.routledge.com/textbooks/philosophy/downloads/a2/unit3/political-philosophy/JusticeRawlsNozick.pdf>
 James Wilson. “GM Crops: Patently Wrong?” in Journal of Agricultural and Environmental Ethics, 20.3, <http://www.ucl.ac.uk/~rehbjgs/docs/gm-crops-patently-wrong.pdf> p. 273.
 Ibid., p. 272.
 Ibid., p.267.
 Wilson, p. 273.
 Robert Nozick. “The Entitlement Theory” in Anarchy, State and Utopia. New York: BasicBooks, Inc, 1974, p. 204.
 Ibid., p. 206.
 Harvard Law. Philosophic Perspectives on Intellectual Property. Harvard Law: The Bridge. <http://cyber.law.harvard.edu/bridge/Philosophy/ipphil.htm>