Schmeiser Case Heads for Top Court 

MURRAY LYONS / The Star Phoenix 13jan04

Terry Zakreski has been getting up early to watch television Saturday mornings of late, preparing for his big date next Tuesday at the Supreme Court of Canada in the case of Schmeiser versus Monsanto.

Percy Schmeiser

Unlike many young lawyers in the past who had little guide as to what they could expect in their first-ever appearance before Canada's nine high court judges, Zakreski has had the advantage of watching Supreme Court proceedings on C-PAC, the country's political specialty channel.

It's all part of the Saskatoon lawyer's preparation for the high-stakes and high-profile appeal that he's prepared on behalf of his client, combative Bruno farmer Percy Schmeiser.

Zakreski and Schmeiser are entering the final chapter in the legal war with Monsanto Canada Inc. over Schmeiser growing Roundup Ready canola in his 1997 and 1998 crops.

The global seed and chemical giant won a patent infringement judgment against Schmeiser almost three years ago.

The Schmeiser case has opened up a whole new legal avenue for Zakreski's work in civil litigation.

Since representing Schmeiser, he has also become the main counsel for a group of organic farmers taking Monsanto to court for not being able to stop the spread of the Roundup Ready gene in the environment.

"It's such a big thing," Zakreski said. "It's had a way of taking over everything. It's become a huge thing for me."

One factor that has shaped his final appeal of the Schmeiser case is the Supreme Court's decision in the so-called Harvard Mouse case.

Despite the fact this genetically altered rodent intended for lab research has been patented in many countries, the Supreme Court upheld the view of the Canadian patent office that it could not be patented in Canada.

That ruling has come down since Zakreski took the Schmeiser case to its first appeal level at the Federal Court of Appeal.

Since the Harvard Mouse decision, Zakreski has narrowed the basis of his appeal even further. In fact, Zakreski notes in his statement of facts that the Supreme Court in the Harvard Mouse case determined that "higher life forms are outside the definition of an 'invention' in the Patent Act."

But Monsanto spokesperson Trish Jordan says Monsanto's legal position doesn't see any quicksand on the life form issue.

"We feel quite confident because the courts and Parliament have already decided or determined that a plant is a lower life form," she said. "The major difference between Harvard Mouse and this (the Roundup Ready gene) patent, or any other patent available on plants with unique genes or cells, is mammals versus plants."

In Monsanto's memorandum of fact, Roger Hughes, the company's Toronto-based patent lawyer, also argues that Harvard Mouse is different from the Schmeiser-Monsanto case, because in the Harvard Mouse case there never was a patent.

"In Harvard Mouse, the onus was on the person seeking those particular claims to persuade the Commissioner of Patents that they were proper, and having been turned down, to persuade the courts," Hughes states.

"Here, a patent has been allowed. The onus rests on Schmeiser to demonstrate that the commissioner and the lower courts were wrong."

Zakreski also argues his client never "used" the Monsanto-patented Roundup Ready gene in the normal sense of the word "use."

At the trial, Schmeiser testified he had no idea how Roundup Ready canola got into his fields and he never sprayed the crop with Roundup.

"Since Mr. Schmeiser did not spray Roundup on a growing crop, he did not employ or exploit the Roundup Ready trait in his crops," Zakreski argues.

Hughes, in his submission, argues "use" has been given broad meaning in the patent act.

"By planting, growing, cultivating, harvesting and selling that which they knew contained Monsanto's patented genes and cells, Schmeiser infringed the patent," Hughes writes. "The claims do not depend on the application of glyphosate (the generic name for Roundup).

Since losing the case, Schmeiser has become a globe-trotting symbol of individual farmers versus big corporations, with Schmeiser branding himself as a seed saver whose rights have been taken away.

The cause celebre nature of the Schmeiser-Monsanto battle is reflected in the fact that there are intervenors at the Supreme Court on both sides of the question as to whether novel traits such as Monsanto's Roundup Ready gene can, or should be, patented.

The Canola Growers Association of Canada and Saskatoon research umbrella group, Ag-West Biotech Inc., line up with BIOTECanada and the Canadian Seed Trade Association on the side of patenting seed and genes within seeds.

Monsanto's Trish Jordan says the intervenors bring a larger perspective to the implications of the Schmeiser-Monsanto case.

"It's not specifically the issue of Monsanto and Roundup Ready canola, but (they are) looking at the larger issues," she said. "We feel strongly that respect for intellectual property is important to all involved in agriculture whether that's technology developers, farmers, breeders, seed growers, distributors. We all need it."

On the other side, the National Farmers Union (NFU) is part of a larger umbrella group, including the Council of Canadians, the Attorney General of Ontario and the Sierra Club of Canada, that opposes applying patents to life forms, including plants.

Allan-area farmer Terry Boehm, NFU national vice-president, says the fact Monsanto can't control the spread of its gene in the environment has hurt all farmers' rights.

He says Monsanto has taken its Roundup Ready gene and inserted it into crops that were developed by public research agencies paid for by taxpayers.

"We think patents are inappropriate, and the kind of monopoly control it confers on Monsanto is inappropriate, and it presents grave consequences for farmers and seed savers and really for bio-diversity," Boehm said.

But the Canola Growers of Canada points out that, in 2003's crop, 90 per cent of the canola crop in Canada was grown using one of three major competing biotech systems that allow a farmer to spray his crop for weeds even after the canola has emerged from the ground.

Rick White, the policy analyst for the canola growers lobby group, says Roundup Ready varieties alone accounted for 60 per cent of the 2003 canola crop.

He said canola growers intervened in the Schmeiser case to remind the Supreme Court of the importance to farmers of having new technology in crops.

"We felt it very important to get involved in this case because this technology, which is patented, could be affected by this decision," he said. "It's a very important technology to our growers," White said.

source: http://www.canada.com/search/story.aspx?id=e33234f4-9e80-4893-b53f-6eafa279d27b 13jan04