Re:The bottom line is this... (Score 1)

Your general point is accepted: he had never specifically tested the plants in his 1997 field for the gene, and their Roundup resistance could in principle have been due to a spontaneous mutation, in which case the patent would not have been infringed. However, such a spontaneous mutation would be profoundly unlikely, and Percy Schmeiser certainly was aware of that. In particular, if such a mutation did occur, it would be an extremely remarkable coincidence for it to show up in crops all along one roadside, and declining as one moved away from the roadside, which is the spatial pattern of glyphosate resistance observed by Percy Schmeiser. Given that Percy Schmeiser was a professional canola farmer, he would certainly have been aware that 1) glyphosate-resistant genetically engineered canola had just appeared on the market and was being grown in the area; 2) the only glyphosate-resistant canola presently known to humanity derived its resistance from the presence of the inserted gene for glyphosate resistance; 3) spontaneous mutation of a plant to evolve glyphosate resistance is relatively improbable. I think we can reasonably conclude that he would have been quite aware that the overwhelmingly most probable explanation for the appearance of glyphosate-resistant canola along the roadside edge of his field was contamination with genetically engineered canola, rather than a spontaneous mutation.

That is, I think he would have said "oh, darn it, this is likely genetically engineered canola contamination" (well, ok, probably not those exact words), although you are correct, he would not have known it for a fact without actually testing for the gene (or maybe testing for the protein produced by the gene).(I'm going to completely disregard the possibility of spontaneous emergence by natural mutation of the exact same gene for glyphosate resistance, because that is astronomically unlikely.)

(Furthermore, his claim is that the genetically engineered canola was profoundly unwelcome in his fields, as (according to other contributors) he was an organic farmer, and attached great value to his own personal strain of canola. If his story were true, wouldn't the known high likelihood that the observed glyphosate-resistance arose due to contamination with foreign, genetically engineered canola be enough to make him avoid taking his seed from the contaminated region?)

It's a weak argument, but the goal is "innocent until proven guilty" (beyond a reasonable doubt.)

Actually, that's only the standard in criminal cases. In civil cases it is "balance of probabilities", and the requirements relating to the existence of knowledge and intent are also completely different between civil and criminal cases. If he were accused of a crime of growing genetically engineered canola, not that there is one, then that might be a defence. Even in a criminal case, the evidence could still well meet the standard of proof beyond a reasonable doubt; likely the onus would be on him to persuade the court he genuinely did not suspect that the glyphosate-resistance was due to the gene, and failing to persuade the court (i.e. if they thought he did suspect it but was lying about it) would likely be taken as meeting the "proof beyond a reasonable doubt" requirement. Generally, if you commit actions knowing that they are likely criminal but have a slight possibility of not being criminal, that's the necessary intent. I believe (IANAL, obviously) that the facts need to be proved beyond a reasonable doubt, but the proof of intent doesn't require e.g. telepathy on the part of the jury; it is arguments like "you knew X and did Y, therefore you must have had the intent".
But really more can not be said without further knowledge about the nature of this hypothetical criminal law.

Furthermore, in a patent infringement case, such as this one, there
is in general no requirement whatsoever that the accused infringer had any intent to infringe the patent, or any knowledge that he or she was infringing it. That is, these not only don't have to be proved, but don't have to have even existed. The onus is purely on the potential infringer to know what patents exist and to obtain all knowledge necessary to know if what they are doing could infringe a patent.

In the Percy Schmeiser case, the appellate court explicitly relaxed this standard of "no knowledge required, no intent required" considerably, since it would obviously be unfair to hold a farmer responsible for patent infringement due to unknown contamination by foreign genes, since the farmer has no control over that. But the court did not make the bar so high that the farmer had to have specific knowledge of the presence of the actual Monsanto genes, as opposed to merely knowledge of Roundup resistance. Since the presence of Roundup resistance is in practice a pretty reliable indicator of the presence of the inserted gene for Roundup resistance (although, as you correctly point out, not infallible in principle, given the possibility of spontaneous mutation), it does not seem like a departure from the aims and standards of patent law to say that a farmer who plants seed that is known to be Roundup resistant accepts the resulting risk of being found in infringement if the mechanism of the Roundup resistance does turn out to be due to the inserted gene. The onus is on the possible infringer to not infringe, given knowledge that is reasonably available to them. If they knowingly run risks of infringing, then they accept those risks. That is the way patents work, and that is the way they have always worked. As to whether that is the way they ought to work, that is indeed a fair and arguable question, but a different one from the one you raise.

I am going to stray somewhat from your original point, to expand on this further:

Ordinarily when people knowingly infringe patents, as Mr. Schmeiser did, or indeed, even engage in business in a manner such that they might run the risk of infringing patents, it is a calculated business decision, made with consideration of the possible costs, possible benefits, and the risks involved. The actions of Mr. Schmeiser's company in planting seed which it knew to be Roundup resistant (only by testing for ability to survive Roundup spraying but without having tested for the presence of the gene, as you correctly point out) was not a very well calculated business decision. Of course, they may not have appreciated that they were actually planting the self-same Roundup resistant seeds they had identified in 1997, through internal communication or seed-tracking problems, but again, running a farming company so poorly that you have no idea what you're planting is not a sound business decision, and companies are expected to adopt civil legal risks arising from their carelessness in the way they conduct their business operations. Corporate carelessness does not insulate corporations (such as Schmeiser Enterprises Ltd.) from civil liablity for the results of the way they do business. I think everyone would agree this is a good thing. Otherwise any company could retain some token clueless directors and thereby gain immunity from any lawsuit.

In short, Percy Schmeiser's real problem is that he made some very bad business decisions: knowingly (or through carelessness, i.e. you should have known) infringing a patent when you know you do not have not a realistic chance of winning any subsequent infringement case is not a sound business. (Mr. Schmeiser surely knew when his company planted the seeds that there was not any substantial probability a court would find in his favour in an infringement case. Note that I am not saying he knew he was actually planting the self-same glyphosate resistant seeds he had identified the previous year, but if he did not know that then he surely knew it was a possiblity that his hired hand had harvested those seeds and saved them, and he did nothing whatsoever to instruct his hired hand to not harvest them. And that was a bad business decision.) Yes, his bad business decisions may cause his company to go bankrupt, but business is competitive and the incompetent sink. Many more deserving businesses have failed, even without bringing it upon themselves.