Plant Patent Rights, Loses Battle With Farmer
(Beyond Pesticides, May 24, 2004) The Supreme Court of Canada ruled on May 21, 2004 that Saskatchewan farmer and folk hero Percy Schmeiser is not financially responsible for Monsanto-owned genetically engineered seeds and plants that ended up on his 1400-acre canola farm. The Court found that while Mr. Schmeiser infringed on Monsanto's patent by saving and replanting seeds on his property, a 50 year old practice for Mr. Schmeiser, he owes Monsanto nothing because he did not derive additional benefit from the use of the company's technology.. Monsanto argued unsuccessfully that Mr. Schmeiser was responsible for a $15/acre technology use fee, regardless of how the plants ended up in his fields. The seeds, which are engineered by Monsanto to be herbicide-resistant to Roundup (glyphosate), known as Roundup Ready, drifted on to his land, contaminating his plants and seed stock. Mr. Schmeiser never used Roundup or profited from the seeds' gene-altered characteristics. The decision reverses the finding of two lower courts that had ordered Mr. Schmeiser to pay the company approximately $140,000 in damages and legal costs.
The Court's 5-4 ruling in Monsanto Canada Inc. v. Schmeiser is being hailed as a victory by Monsanto because the decision affirms the company's proprietary rights to its seeds and plants. However, it appears that Monsanto, should it decide to pursue litigation against other farmers in Canada, would have to show that the farmer profited from the patented seed by using the company's herbicide Roundup. Because Mr. Schmeiser is a seed saver, he unintentionally planted the altered seed and, according to the court, infringed on Monsanto's patent.
Some legal experts believe that the case may backfire on Monsanto. Terry Zakreski, Mr. Schmeiser's attorney said, "If you're going to claim ownership of this gene wherever it lands, then you ought to assume responsibility too." Meanwhile, state legislative efforts are underway across the U.S. to hold biotech companies liable for drift on to croplands that contain conventional crops, which could be worth more than engineered food.
The Court ruling states the following: "The appellants [Mr. Schmeiser] actively cultivated Roundup Ready Canola as part of their business operations. In light of all of the relevant considerations, the appellants used the patented genes and cells, and infringement is established."
The Court continues: "The Patent Act permits two alternative types of remedies: damages and an accounting of profits. Here damages are not available, in view of the respondents' [Monsanto] election to seek an account of profits. The inventor is only entitled to that portion of the infringer's profit which is causally attributable to the invention. A comparison is to be made between the appellants' profit attributable to the invention and their profit had they used the best non-infringing option. The appellants' profits were precisely what they would have been had they planted and harvested ordinary canola. Nor did they gain any agricultural advantage from the herbicide resistant nature of the canola since no finding was made that they sprayed with Roundup herbicide to reduce weeds. On this evidence, the appellants earned no profit from the invention and the respondents are entitled to nothing on their claim of account."
Here is what Mr. Schmeiser had to say about the decision:
"I believe that Monsanto will have a hard time in pursuing patent infringement against other farmers. They are now going to have to prove that a farmer profited from having RR canola in their field. The Court noted that my profits were the same whether I had conventional canola or RR canola, so I find it hard to see how Monsanto can say in any future case that the farmer made more money because of their product. This decision may have removed the "teeth" from their patent.
I also believe that Monsanto will face huge liability issues down the road. The Court determined that they have ownership to the plant and that I infringed by having it in my field. With ownership comes responsibility and I assume more lawsuits will be filed against them for the contamination of farmer's fields. I was always concerned about this lack of responsibility that Monsanto took for the unconfined release of RR canola in western Canada. I think the Court's decision will force them to be held accountable for it now.
On the bigger issue of whether or not their patent was valid, the Court ruled that it is, and we have to accept that judgment. For this to be changed our Parliament will have to act. We have a conflict between plants breeder's rights and patent law and the government will have to sort that out. All I did was save my seed from year to year. Now it is clear that a company's patent will take precedence over the rights of farmer's to save and reuse their seed."
According to Common Dreams Progressive Newswire, "There are signs that U.S. Courts are awakening to the challenges of balancing farmers rights and those of biotech companies. In an April 23 opinion, Judge Arthur J. Gajarsa of the U.S. Court of Appeals for the Federal Circuit in SmithKline Beecham Corp. v. Apotex Corp., wrote: "Consider, for example, what might happen if the wind blew fertile, genetically modified blue corn protected by a patent, from the field of a single farmer into neighboring cornfields. The harvest from those fields would soon contain at least some patented blue corn mixed in with the traditional public domain yellow corn--thereby infringing the patent. The wind would continue to blow, and the patented crops would spread throughout the continent, thereby turning most (if not all) North American corn farmers into unintentional, yet inevitable, infringers. The implication -- that the patent owner would be entitled to collect royalties from every farmer whose cornfields contained even a few patented blue stalks -- cannot possibly be correct."
Take Action: Percy Schmeiser and his wife Louise have dedicated the last six years of their lives to this battle. They took on this cause and Percy traveled around the world to identify the threat that Monsanto poses for farmers around the world. Percy received the Mahatma Gandhi award when he traveled to India in 2000. He spoke to two National Pesticide Forums. As Percy says, "I have always campaigned on the right of a farmer to save and re-use his own seed. This is what I have been doing for the last 50 years. I will continue to support any efforts to strengthen the rights of a farmer to save and re-use his own seed." Please consider a donation to Percy and Louise to help cover their immense legal bills. You can go to Percy's website or send a check to Fight Genetically Altered Food Fund Inc., Box 3743, Humboldt SK Canada SOK 2AO. You can also readch him by email. Read on the Beyond Pesticides website or call us about efforts in the U.S. to stop the threat to farmers and consumers from genetically engineered seeds and plants and join in.