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Monsanto goes after Indiana farm family

by Robert Schubert
CropChoice.com editor

(Sept. 25, 2001 - CropChoice news) - Troy Roush and his family successfully farm about 4,000 acres of soybeans, popcorn and, occasionally, wheat in central Indiana. But not all is going well on their farm. Monsanto is suing the family for allegedly breaching grower contracts and infringing the patent on the soybeans it genetically engineered to resist the herbicide Roundup (glyphosate).

Monsanto would not comment on any aspect of this story.

Roush thinks it all began with his trip to Argentina in 1997 to help assemble combines for popcorn harvesting. While in the Pampas region, he remembers seeing beautiful farmland of soybeans and corn with nary a weed in sight. He knew this was because the growers had planted Roundup Ready soybeans and then applied Roundup to kill weeds.

That didn't bother him. What he learned later did. The growers weren't paying technology fees or signing agreements, so they were able to save the seeds. They were paying $13 per gallon for glyphosate compared to the $40 per gallon price in the United States. Monsanto was charging the growers a fraction of what U.S. growers pay for Roundup Ready seeds. Such price differentials, still in effect today, amount to anti-trust behavior, Roush says.

In the spring of 1999, he saw the area representative for Monsanto at the local coop. They spoke about the situation in Argentina, especially the price differences for the chemicals and transgenic seeds. He "took it hard," Roush says. This encounter, plus the fact that the family is successful and outspoken, might have prompted Monsanto to make an example of them.

"We're young and aggressive and we work our butts off," he says. "We're aggressively expanding" to farm more acreage.

Later that summer, at his family's hog roast, one of their landlords asked Roush if Monsanto was suing them. This was the first he'd heard of it.

In mid September, Mr. Swithers, a private detective working on behalf of Monsanto, visited the farm. He informed Roush's mother of his investigation into rumors that the family was saving Roundup Ready seed and replanting it, an infringement of the patent. While her son was in route to the house, she informed Swithers of their contract with Precision Soya to grow 492 acres of Roundup Ready soybeans for seed. The rest of their soybean acreage was planted with conventional beans.

When Troy arrived, he offered to show Swithers their chemical and seed purchase records, as well as their soybean fields. The agent declined. In fact, he never went to the local coop to collect records on their chemical purchases or to Precision for information on the Roundup Ready bean seeds that the family grew for the company.

A couple days later, Roush and his brother drove past Swithers and two other men on the road running next to some of their fields. They had photocopies of plat maps and apparently were attempting to enter the fields to take samples. The fact that the men were trespassing and that they had highlighted fields that the Roushes didn’t farm bothered Roush.

"It is apparently OK for Monsanto to trespass upon us and violate our property rights in an effort to protect their property rights," he says.

In November, Swithers left a message on the Roush answering machine: "We found Roundup Ready soybeans on your farm. Not many. I think you know what you did. Can we sit down and talk it over like gentlemen?"

Roush agreed, on the condition that the meeting happen in the presence of a Monsanto representative. Swithers wouldn't go for that. Rumors circulated all winter, but nothing happened. Roush thought the matter was dead.

On April 1, 2000, he and his family began loading and cleaning seed beans for the season. As usual, they hauled their conventional saved beans to mill for cleaning in conspicuous red hopper wagons. Roush thinks that someone saw them and called the company because, shortly thereafter, Monsanto attorney Joel Cape demanded aerial maps of their farm. The family refused to comply. Whenever the two sides did reach deals, Cape invariably backed out. The family knew that the time had arrived to find an attorney, one that was a good litigator.

They hired patent attorney David Lundy of Fort Wayne, Ind. He quickly made a deal with Monsanto in which the company would drop the lawsuit if the Roushes turned over the maps of their fields. After agreeing, Roush says that Cape reneged on the deal, just as before.

The bad news came on May 10, 2000. Monsanto filed its lawsuit against the Roushes in federal court in the northern district of Indiana. It alleged breach of contract and infringement of the patent on Roundup Ready soybeans.

Breach of contract

Off the bat, Monsanto produced four 1998 grower agreements bearing Roush signatures. Problem was, they were forged. During depositions, an employee of a nearby co-op, from which the Roushes purchased no seed or herbicide, admitted to signing them without the permission or knowledge of the family. Rather than withdraw the agreements, though, Monsanto attorneys argued that they had ratified the contracts through the act of buying and growing the transgenic beans.

Patent infringement

To prove that the Roushes infringed the patent on its transgenic soybeans by saving seeds that came from the crops they produced in 1999 and 2000, Monsanto had to sample from and test their fields.

However, the company’s behavior, methodology and results were questionable, Roush says.

Monsanto claimed that samples its agents took, without permission, from 1,400 acres in 1999 tested positive for the Roundup Ready gene. "Funny, though," Roush says, "the company tested well under 1,000 acres. There doesn’t appear to be any attempt on Monsanto’s part to be accurate, anywhere."

Consider that the company tested neighbors’ conventional soybeans, nearby woods and popcorn fields and then said the samples registered positive for the presence of Roundup Ready genetics.

Getting hold of those results took some doing. "They did not show us any results of their 1999 testing until August of 2000 when it was too late for us to do anything," Roush says. "It was also too late for us to do our own sampling."

In the first week of July 2000, the Roushes, Lundy, and Cape met with Judge Lee; four or five other Monsanto attorneys participated via speakerphone. The judge wanted to know the specific amount of acreage on which the family allegedly was growing Roundup Ready beans. Roush remembers Cape seeming unsure of what to say. After pausing, the attorney told the judge: "We think they grew around 1,000 acres"

Lee ordered that both sides attend an arbitration meeting in August to settle the dispute, but Monsanto somehow managed to avoid it. The excuse was that one of the company’s attorneys left for vacation, Roush says.

In mid-August, when Monsanto wanted to do more sampling, a member of the Roush family accompanied each of the three Monsanto sampling teams. They took a sample and the Roushes took a duplicate sample, and with the help of global positioning systems, recorded the latitude, longitude, field number, sample number and population.

Twelve people sampled 1,700 acres over the course of two days. Roush finds it interesting that in 1999, the private investigator, and two other men, without maps, could have tested all the fields in one day.

Monsanto took a total of 350 samples from 36 fields on those 1,700 acres. They turned out to be conventional beans, not transgenic. Roush found this was odd given that all of the saved conventional bean seed they planted came from fields that Monsanto said were Roundup Ready in 1999. Obviously, the results should have been positive, with the exception of a 16.3-acre field in contention.

The family offered to settle the suit in April. They proposed that an independent, third party analyze the samples decide the matter once and for all. Monsanto would have none of it, Roush says.

On June 1 of this year, despite the fact that the litigation has not reached the trial stage and that the county agricultural extension agent found no evidence of wrongdoing in the seed and chemical purchase records he audited, Monsanto sent a letter to 991 farm supply dealers in which it wrote that the Roushes were criminals (See the letter on the Roush website at www.roushfarms.com) and that farm suppliers should refrain from selling any Monsanto products to them.

Roush spoke about this in testimony to the Indiana Legislature’s Interim Study Committee on Agriculture and Animal Issues earlier this month:

"Under the Monsanto marketing plan, in order to induce all farmers not to infringe Monsanto’s patents, Monsanto appears to have conducted a witch hunt in the Midwestern states of Missouri, North Dakota, Indiana, Illinois and other states by picking a dominant farmer to sue…Publication of these lawsuits and labeling of those farmers as "seed pirates" have convinced most farmers not to save Monsanto’s seed."

The discovery phase of the lawsuit is expected to end in November, and a trial likely will begin in late 2002.

Roush attorney David Lundy says that Monsanto is playing a game of intimidation by suing the Roushes, the Nelsons (see Monsanto sues Nelson farm) and Canadian canola farmer Percy Schmeiser. He thinks that Monsanto sued them without justification and that the farm community should note the burden that these growers are bearing on their behalf.

"These families didn't save seed and proving their innocence is difficult in view of the nebulous science with regard to laboratory testing" for genetically engineered seed, he says.

Although he will defend his clients against the charges of breach of contract and seed saving, Lundy thinks he can go further by invalidating the Monsanto patent.

In order to obtain a patent, the applicant must demonstrate that the invention is not obvious. He will argue that the knowledge to produce herbicide-resistant soybeans was obvious and available in publications.

To avoid any more charges of seed saving, the Roushes planted all of their soybean acreage this year with Roundup Ready beans that they purchased from a licensed dealer.