Field Procedure - Part 3

By E. Freeman 10/11/2008

Editor's Note: The following article is the third in a series of five articles on Monsanto’s seed patents, patent infringement policy and legal actions. For the other installments, see the sidebar.

Larry McDowell likes to boat and be outdoors in his spare time (of which there is not much) and his laugh is contagious.

McDowell is the owner and manager of St. Louis-based investigative firm McDowell & Associates, a company Monsanto has contracted to investigate possible seed patent infringements by farmers.

In May of 2008, Vanity Fair magazine published an article calling McDowell and his employees “a shadowy army of private investigators and agents in the American heartland” that “strike fear into farm country. Farmers call them ‘seed police’ and use words such as ‘Gestapo’ and ‘Mafia’ to describe their tactics.”

McDowell is especially offended by the use of those words to describe him and his team. “That comes out and the people in my community are reading it,” McDowell said. “How am I supposed to feel about that?”

Who is this “shadowy army” and what exactly is their process of investigating farmers and supposedly “striking fear into farm country?”

As explained in the second article of this series, McDowell and his employees rely on anonymous tips from the sales support center about farmers who might be infringing on Monsanto’s patented seed policy. If the support center gets a solid lead that might turn into an actual investigation, it forwards the information to McDowell’s team.

Seed cleaning is the process of removing all of the undesirable debris from pure soybeans—or any other seed—in order for the seed to be plantable. Farmers who cultivate conventional, non-patented soybeans, this procedure is perfectly legal, often have their seeds cleaned prior to planting or replanting.

“First of all, we find out when calls have been made to the call center,” McDowell said. “Then we figure out if a cleaner in the area is active, and then finally we’ll come out and take a look at the cleaning operation. Sometimes we get input from the sales team as well. They might say a certain grower is causing a disruption in the marketplace with saved seed.”

If everything meets the preliminary specifications, McDowell’s team will set up a surveillance to confirm whether the allegations of seed piracy are true.

Clay, a polite, broad-shouldered guy from a rural background, and David, the mild-mannered son of a farmer, are two lead investigators who spend the majority of their summers doing surveillance around active cleaners.

“The most important thing when we do surveillance is to gain video evidence of the facts and to positively identify who may be involved in any infringing activity,” McDowell said. “We need to see a farmer planting the seed and then confirm whether the seed contains Monsanto’s traits.

“Then we determine whether the farmer obtained the seed from an authorized seed dealer. We do this by watching the planting operation, checking seed and herbicide sales reports and observing seed cleaning activity.”

If the team’s observations indicate a farmer is using saved seed, a face-to-face interview with the specific grower might clear up any unanswered questions the team has about whether or not the farmer is using saved patented seed.

“These interviews happen in the fall after we have gathered as much information as possible,” McDowell said. “We knock on the farmer’s door, ask to speak with him about his farming operation and—most often—it becomes apparent whether the farmer did in fact plant saved Roundup Ready soybeans.”

Contrary to what various media sources, including Vanity Fair and St. Louis’ Channel 5 news, would say about the investigators’ methods, the team insists it strictly adheres to trespassing laws, privacy laws and—perhaps most importantly—common sense.

“The [trespassing] allegations are absolutely false,” McDowell said. “If you hop in the car with us during our surveillances you’ll see that we don’t need to trespass. We can see you plant, spray and clean seed from a public road.”

“We have nothing to gain by trespassing,” David added. “We can see as much from the truck as we can in a field. So why would we need to trespass?”

Once evidence has been collected that suggests a grower might be planting saved, patented seed--McDowell and his team compile all of the evidence and submit it to attorneys.

“The farmers will plant and spray and do their thing all the way through July and sometimes into August,” McDowell said. “Then we’ll take some time off, get everything together, upload our records, and kind of make sure our evidence is straight. We won’t interview anybody until we have all of our evidence to make sure it’s not just someone who is short on their purchases.”

Be sure to check back for the next installment of the series about the grower interview process.