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66 The remaining question was how such a pure concentration of Roundup Ready Canola came to grow on the appellants' land in 1998. The trial judge rejected the suggestion that it was the product of seed blown or inadvertently carried onto the appellants' land (at para. 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 . . . 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.
67 He concluded, at para. 120:
I find that in 1998 Mr. Schmeiser planted canola seed saved from his 1997 crop in his field number 2 which he knew or ought to have known was Roundup tolerant, and that seed was the primary source for seeding and for the defendants' crops in all nine fields of canola in 1998.
68 In summary, it is clear on the findings of the trial judge that the appellants saved, planted, harvested and sold the crop from plants containing the gene and plant cell patented by Monsanto. The issue is whether this conduct amounted to "use" of Monsanto's invention -- the glyphosate-resistant gene and cell.
It may be that some Roundup Ready seed was carried to Mr. Schmeiser's field without his knowledge.
If they can’t find a farmer at home- I should say before I go into that- I’ve had many, many farm wives phone me crying on the phone saying, “Monsanto’s police have been here; they’ve threatened us, we won’t have a farm left. What do we do?” I’ve tried to advise them where they can get legal help. Another item- if they can’t find a farmer at home, they send a farmer, if they have his mailing address, what farmers call extortion letters. We don’t know how many thousands of these have been sent to farmers, but I have many of them that have been turned over to me. It states briefly, “We have reason to believe (this is by Monsanto) that you might be growing some of Monsanto’s GMO canola or soybeans without a license. We estimate you have 200 acres, 100 acres, 500 acres, whatever the case may be, send us $200,000, $100,000 (I have one here for $171,000) by a certain date by certified check and we may or may not take you to court.” Can you imagine the fear in a farm family when they get a letter from a multi-billion dollar corporation – send us $100,000 by a certain date because we think you might be growing it. Every farmer that testified on my behalf at my trial – rest assured, they got a letter from Monsanto. Intimidation and harassment.
If they can’t find a farmer at home, they don’t know his mailing address, but they can go to the local municipality and get his land description, they’ll use an airplane or helicopter. They’ll fly over the center of a farmer’s field where there’s canola or soybeans and they’ll drop a Monsanto herbicide spray bomb, normally in the center of the field. It’ll cover about 30 feet across. Then they’ll fly back after 10 or 12 days to see after the chemical has time to activate. If the farmer’s crop has died after being hit with this herbicide Roundup spray bomb, they know the farmer wasn’t using Monsanto’s GMO canola. If it hasn’t died, they know the farmer was using Monsanto’s GMO canola or soybeans. Those are the methods that are being used to put fear into farmers and to check on farmers.