Monsanto Prevails in Patent Fight
Against Percy Schmeiser
KRISTEN PHILIPKOSKI / Wired News 21may04
The Canadian Supreme Court Friday narrowly upheld a ruling against a farmer who used genetically modified canola seeds patented by Monsanto while replanting his field.
In a 5-4 decision, the court sided with the biotech giant, which sued Percy Schmeiser in 1997 after Monsanto agents found the company's patented gene in canola plants on his farm near Saskatoon, Saskatchewan. The court agreed that he stole Monsanto's seed, even though Schmeiser maintained that he inadvertently used seed that had blown into his field.
Despite the ruling, Schmeiser, 73, said the decision is a personal victory because the court also ruled that he did not profit from the seed. Schmeiser will not have to pay the $200,000 sought by Monsanto to cover court costs and the profit the company said Schmeiser had gained by using its seed.
"This has been a personal victory, because the court ruled against Monsanto for the cost of trial and profits," Schmeiser said Friday morning during a press conference. "I look at the big picture. It's not the victory we were looking for, but I and my wife have done everything possible to bring it this far, and to me that is a victory."
A Monsanto representative was not immediately available for comment.
There are implications beyond this case, said Schmeiser and his supporters, including the Council of Canadians and the National Farmers' Union of Canada. At the heart of the matter, they said, is a farmer's right to save and use seeds from year to year. Schmeiser's trouble started when he did just that -- in addition to saving his own seed, he also saved and planted Monsanto's patented seed.
Schmeiser said he had no interest in planting genetically modified seed. The seed blew into his fields from a neighbor's crop, he said, and rather than profiting from Monsanto's technology, it actually contaminated and ruined a seed Schmeiser had cultivated for 50 years.
Also, in order to benefit from the seed, which is resistant to Monsanto's herbicide Roundup, a farmer must spray the herbicide. Schmeiser said he never sprayed it.
Still, the lower courts said that Schmeiser "knew or should have known" that he planted the patented seed. Schmeiser said that at the time he didn't know any patent existed on the plant, but the Supreme Court upheld the lower courts' ruling.
Monsanto said that if Schmeiser didn't want the seed, he should have asked the company to remove it. Monsanto says it will remove, free of charge, any unwanted Roundup Ready canola, or any other genetically modified crop. But farmers and agricultural scientists argue that by the time a genetically modified seed gets into a crop, the entire field would likely have to be dug up.
at issue is the ability to patent a higher life form (including plants), which was previously barred by Canadian law. But the legislation was written a century ago, before genetic modification was considered, and Schmeiser's supporters are urging Parliament to update the law.
"Our original intent was to not allow the patenting of higher life forms," said Nadege Adams, a spokeswoman for the Council of Canadians. "This was lost today. The Supreme Court said you don't have to patent the higher life form, just the gene, and you have control over the whole organism."
The Canadian Supreme Court recently heard a case that Schmeiser supporters hoped would guide the court's decision today. In the OncoMouse case, the court ruled against Harvard University, saying it did not have patent rights on its OncoMouse. Although Harvard scientists worked 17 years to develop the mouse that quickly develops cancer, the court said it does not count as an invention.
Friday's decision would seem to conflict with the OncoMouse ruling by saying Monsanto's gene patent gave it rights to the plant that contained the gene. The four justices who dissented said Monsanto should not have protection over the whole plant.
While Schmeiser said his part of the battle is now over, Adams warned the biotech industry to expect a backlash from farmers.
The United States already grants patents on plants. But a National Farmers Union representative lamented the precedent Friday's decision sets for the rest of the world.
"What this issue is fundamentally about is control and ultimately greed," said Terry Boehm, vice president of the farmers union. "Unfortunately this court ruling, I feel, is an unenlightened ruling that doesn't reflect the farmer's right to save seed. This is a tool of oppression now. The court does say that the gene is usurping the entire history of that seed -- thousands of years of development."
- Contribute directly to the cause of Percy Schmeiser at www.percyschmeiser.com
source: http://www.wired.com/news/technology/0,1282,63555,00.html?tw=wn_tophead_2 22may04