More
on:
[ Monsanto
| Percy
Schmeiser ]
The long saga of Saskatchewan farmer Percy Schmeiser and Monsanto Co. ended yesterday in the Supreme Court of Canada. Mr. Schmeiser won a small battle, in that he won't have to pay $19,832 to Monsanto for using Monsanto's herbicide-resistant seeds without permission. Monsanto, however, won the war. In a 5-4 ruling, the court upheld the U.S. biotechnology giant's claim that Mr. Schmeiser breached the Patent Act—and violated Monsanto's patent rights—by growing canola containing a patented gene without Monsanto's permission.
The court left aside the question of whether the Roundup Ready canola seeds that grew in a small patch on Mr. Schmeiser's property in 1996 had blown unbidden onto his land, as the commercial farmer claimed. But it found that Mr. Schmeiser knew what the seeds were when he saved some of his harvest, took the canola to a seed treatment plant, had it treated for use as a seed and planted a much larger crop in 1998.
Up to that point, the majority and minority judges agreed. They parted company over whether Mr. Schmeiser had "used" the patented cells and genes as the Patent Act defines "use." The dissenting judges said the growth of a plant was not a "use," because natural propagation, not human intercession, was responsible for it. The majority said that argument ignored the role of human cultivation.
As well, in its 2002 decision on the Harvard Mouse, a mouse genetically modified for use in cancer experiments, the Supreme Court had ruled (too narrowly, in our view) that higher non-human life forms cannot be patented in Canada. That decision led here to a chicken-and-egg argument: whether the harvesting of protected seeds from a non-patentable plant can be considered a patent violation, or whether patented cells and genes are protected only in the laboratory.
The court reached a sensible conclusion: that Mr. Schmeiser furthered his business interests by knowingly using a patented invention (an essential component of the seed saved from Roundup Ready plants) without paying the going licence fee of $15 an acre, and in the bargain deprived Monsanto of the full enjoyment of the monopoly conferred by the patent. To have ruled otherwise would have gutted the patent protection bestowed on Roundup Ready canola and imposed too narrow a construction on the "use" of patented life forms.
source: http://www.globeandmail.com/servlet/ArticleNews/TPStory/LAC/20040522/EMONSANTO22//?query=schmeiser 22may04
|
To
send us your comments, questions, and suggestions click
here |