10 thoughts on “Percy v. Goliath – the movie.

  1. 3

    I have to wonder how many of their patents have run out by now and people are just using their seeds now as they please?

    1. 3.1

      The original patents on the RoundupReady tech have all expired by now. Not many farmers, however, are buying generic versions of RoundupReady corn, canola, soybeans, etc.

      That is because most weeds have, by now, evolved resistance to glyphosate. The RoundupReady tech, therefore, does not solve any problem that farmers currently encounter in the course of farming.

      Rather, one needs different herbicide blends now to do the job that glyphosate used to do. Monsanto has created new transgenic crop varieties (marketed under the XTEND mark) that are resistant to the new herbicide blends. Those new varieties are covered by new patents.

  2. 2

    As a work of fiction, this may well be a compelling work of fiction—hard to say based merely on a trailer. This does not appear, however, to be based on any “true story.”

    Monsanto has sued a number of individual farmers for growing transgenic crops without a license. Monsanto has won every one of those suits. If this is a story about a plucky individual who beats the corporate “Goliath,” it is a work merely of fiction. Incidentally, every one of those suits involve farmers buying Monsanto seed, and then saving more seed for a second generation.

    Meanwhile, I notice that the “Percy” character in the trailer claims (unlike the actual farmers against whom Monsanto has won lawsuits) never to have bought Monsanto seeds. If so, then the detectable infringing plants in his crop must come from cross pollination contamination. The Organic Seed Growers tried to get a declaratory judgment of non-infringement against Monsanto for organic growers whose crops are cross contaminated with Monsanto proprietary genes. The court dismissed for lack of subject matter jurisdiction because Monsanto had given a covenant not to sue such farmers. The court concluded that the language of that covenant was so capacious that there was no case or controversy sufficient to support DJ jurisdiction.

    In other words, I cannot find an instance of a grower in “Percy’s” sympathetic position that ever had to take on Monsanto. Once again, as a work of fiction, this might be good drama. As mere fiction, however, it does not seem to offer any compelling insights about IP law and its real-world implications.

    1. 2.2

      “If this is a story about a plucky individual who beats the corporate “Goliath,” it is a work merely of fiction.”

      The film seems to be about Percy Schmeiser. The Wikipedia article about his case suggests that he “won” in so far as the Canadian supreme court decided that he didn’t owe any money to Monsanto for he “use” of their IP.

      link to en.wikipedia.org

      1. 2.2.1

        Ah, sure enough, the flag in the back of the courtroom scene has a Maple leaf. My bad, and thanks for catching that. I suppose that what I should have said is that, as a work of fiction, it has nothing to teach us about U.S. IP law and its real-world implications.


          Canadian patent lawyer here to clarify. Uh, “spoilers”, I guess.

          The Supreme Court of Canada decided a couple of Monsanto cases in 2008-2009, Schmeiser and Rivett, both dealing with Roundup Ready soybeans. These cases gave birth to the doctrine of the “best non-infringing alternative”, which allows a defendant found to infringe a patent to posit a hypothetical scenario in which, but for the infringement, he or she would have instead taken a different, non infringing course of action, such that any disgorgement of profits is limited to the difference in profits between the hypothetical non infringing course and the course actually taken.

          In theory this is kosher — disgorgement of profits under an unjust enrichment theory is supposed to be limited to profits causally attributable to the infringement. In practice, it leaves the door open to defendants to spin wild tales about the wonderful alternative options they would or could or should have taken which somehow mysteriously they didn’t take: eg, Schmeiser managed to avoid all liability under this theory.

          The doctrine has since been strictly delimited by the courts and is very hard to prove. Some have suggested that this is a paradigmatic case of “bad facts make bad law”, ie Monsanto suing a small Canadian farmer was too juicy a scenario for the Supreme Court to avoid the temptation of results based jurisprudence.

  3. 1

    Curiously, the relevant Wikipedia page reports the title as merely “Percy.” I wonder if the apparent name change might be related to the 2009 film “David vs. Monsanto.”

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