Seed Police? Part 4

By E. Freeman 11/10/2008

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

They don’t wear uniforms, unless jeans and a polo shirt are considered a uniform. They aren’t loud or pushy and they don’t like seeing good people in bad situations.

When they’re at work, they are simply investigators and fact checkers.

The first three articles in this series explored the process leading up to seed saving investigations and background on why and how Monsanto patents seeds and takes legal action against those who infringe on the patent. This article explains the methodology and process of farmer interviews that lead up to a possible (but not probable) lawsuit.

After all the material has been collected to support a possible case of a farmer seed patent infringement, Larry McDowell, owner and manager of St. Louis-based investigative firm McDowell & Associates, and his team are ready to hit the road. They pack up their files and set out to interview farmers about their farm operations and possible use of saved, patented seed.

McDowell’s investigators, such as Clay and David, work in teams of two during the interviewing process. Clay and David drive to a farmer’s house or business knock on the door and ask for the farmer by name.

“The first and most important thing that we like to do when we get there is let them know who we are, who we work for, and the most important reason that we’re there, which is to talk to them about their farming operation and the possibility of saved Roundup Ready soybeans being planted on their farm,” Clay said.

Although farmers might grow other crops, it is only the Roundup Ready soybeans McDowell and his team are concerned about.

Clay said he starts an interview by asking the farmer basic questions about his farm, and then gets into the questions about the specifics of soybean farming, such as how many acres of soybeans a farmer plants and if those acres are Roundup Ready or conventional soybeans.

“In most cases, most people are 100 percent Roundup Ready,” Clay said. “Every once in awhile, you might have someone who states that he has some conventional. But it’s very seldom that happens.”

The investigators assume the farmer has not infringed; and often find out quickly through a series of simple, polite questions and through evaluation of the farmers records. If the investigators have specific evidence of a farmer cleaning and planting patented seeds—and the farmer denies doing so—the investigators may ask the farmer about their evidence,  but the team never assumes the grower is responsible for any infringement until the questioning and investigation process have been completed.

David said about half the farmers he interviews will readily admit to saving seed and infringing on the patent policy, and many others who deny planting the saved seed end up admitting to saving and planting it during a follow-up interview.

“Some farmers will just go ahead and admit to [saving and planting seeds] after they get confronted,” David said. “With other farmers, they might go with the conventional story until we pull his records. Then nine times out of ten he’ll say his beans were all Roundup Ready. With some other farmers we’ll have to bring a sampling team in before we’re able to figure out whether they’re Roundup or not.”

With the farmer’s approval, the sampling team--professional agronomists--take samples of the soybean crop to determine if the plants are indeed Roundup Ready or conventional beans. The farmers are welcome to accompany the sampling team. Although sampling is most often a part of the litigation process, Monsanto may still have a field sampled if there is any question on whether the crop is conventional or Roundup Ready.

McDowell’s team is finished with their part of the job when the farmer admits infringement or the issue is cleared up. Most farmers agree to sit down and talk with a Monsanto representative and settle the matter; a rare few choose to seek a resolution in the courts.

McDowell and his team said although the trial process can be long and trying for both the farmer and themselves, having to deal with “good people in bad situations” is the toughest part of their job.

The team knows some farmers make conscious decisions to break stewardship agreements and patent laws, but that doesn’t make the job any easier.

“[The farmers] made a choice to do that—save seed—and when we show up at the door they’re in a very bad situation and it’s hard to deal with,” David said.

“We work extensively with the farmer to reach an agreement they can manage, and allows for a continued business relationship going forward,” Chris Reat, a Monsanto representative who often negotiates settlements with farmers, said.

“The farmer has my word that we’re going to gather his records and do it in a respectful way,” McDowell said. “We’re going to take those records, go through the farming operation, and find out what the size of the violation is. And we’re going to bring in a person from Monsanto and get this worked out. There’s nothing good about seeing a farmer or a family upset.”