Bio-tech Industry Awaits Schmeiser Ruling

MURRAY LYONS / StarPhoenix (Saskatoon) 18may04

The biotechnology industry in Canada could find itself at a commercial crossroads this Friday following the release of the Supreme Court of Canada decision in Monsanto vs. Schmeiser.

Ottawa lawyer Konrad Sechley, who specializes in biotechnology patents and helped the industry lobby group BIOTECanada make its intervention in the case in January in support of the Monsanto patent, was a guest speaker Monday at the Saskatoon Bioweek Conference organized by Ag-West Bio Inc.

The now-famous case involved Schmeiser sowing his entire canola crop to a Roundup Ready variety and Monsanto taking him to court for infringement of the patent.

Schmeiser has asked the high court to overturn two lower court rulings that Schmeiser infringed Monsanto's patent by growing and selling genetically modified canola.

Schmeiser claims Monsanto's seeds blew on to his farm from passing trucks or neighbouring fields. The herbicide-resistant gene then became incorporated in his crop after he saved seeds to re-use the following year.

Biotechnology supporters have warned the Supreme Court against overturning patents that have been awarded for seeds and cells. They say Canada is lagging in research because it is one of a handful of countries that outlaws patents on higher life forms.

Sechley predicted the Supreme Court justices will concentrate on a narrow issue within Monsanto vs. Schmeiser, that being whether the patents on a particular gene or cell can be conferred on an entire plant.

"The interesting thing in Canada it appears is that you do not need a claim to a plant to protect a plant," Sechley said. "You can protect a plant by having a claim to a cell.

"In Canada, essentially if you can have a claim to a cell or gene having a novel trait you can confer (patent) protection on the actual plant itself," he said.

Sechley said this is in contrast to many other countries, where higher life forms such as plants or animals can be patented if a novel trait is inserted by a company or scientist.

Sechley said Schmeiser's lawyer, Terry Zakreski of Saskatoon, had an effective argument about Monsanto's original patent application not claiming a patent on a plant.

"It's a dogma in patent law that what is not claimed is disclaimed and how can you have any kind of protection on a plant," Sechley said. "It's a good argument."

The Ottawa lawyer said the Supreme Court justices in January's hearing asked a lot of questions aimed at reconciling the problem of not being able to patent a plant in Canada when companies can get patents on novel genes or cells.

"This was a constant theme which came up over the three hours and I think this will be a major point of the ruling," he said.

While Schmeiser has portrayed his court battle on his website as a David versus Goliath struggle, the implications of the case will apply to many more biotech companies that are nowhere near the size of Monsanto, Sechley said.

"If you take a look at the stats in Canada -- of the approximately 450 biotech companies -- two-thirds have fewer than 20 employees and one-third have fewer than five employees," he said.

"It's really a David versus David in Canada so we want to make sure there is some protection for biotechnology in Canada.

"We need it for our start-up small industries to help them develop," he said. "Monsanto is a Goliath but that's not representative of biotech in general."

Denise Dewar, executive director of plant biotechnology for industry umbrella group CropLife Canada, says the Supreme Court decision will have implications for both agricultural biotechnology and medical biotech, especially if the court favours some of Schmeiser's arguments.

"It would definitely put an investment chill in Canada," she said. "In the long-term, I think you would find businesses would not be investing in Canada because they can't patent their technology and recoup their investment."

source: http://www.canada.com/saskatoon/starphoenix/news/story.html?id=a74fd685-35b7-430b-b600-24ec60caf21a 18may04