Prevails In Patent Fight
By Kristen Philipkoski
05 August, 2004
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
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
Also 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.
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
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.
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.
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.
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."