Washington Post
May 22, 2004


Canadian Court Upholds Claim to Gene-Altered Seed

By Rick Weiss and Justin Gillis

Sometimes, Goliath wins.

Capping a seven-year, globally watched legal battle between
biotechnology giant Monsanto Co. and a scrappy 73-year-old
Saskatchewan farmer, the Supreme Court of Canada ruled
yesterday that Percy Schmeiser violated Monsanto's patent by
growing the company's high-tech canola and saving the valuable
seeds produced by those plants.

The landmark 5 to 4 decision marks the first time a high court
in any country has ruled on how extensively a company can
control a farmer's use of its gene-altered seeds and plants. By
affirming broad proprietary rights for Monsanto in Canada -- a
country that allows only limited patents on life forms and is
considered relatively friendly to farmers' rights -- the court
set both national and global precedents that strengthen the
hand of agricultural biotechnology corporations.

Carl Casale, Monsanto's executive vice president, hailed the
ruling as a seminal declaration that will give agricultural
companies a clear legal framework in Canada.

"It's a great day," Casale said from Monsanto headquarters in
St. Louis. "Other companies beyond Monsanto were just told
today that Canada continues to be a very good place to invest
for the benefit of farmers."

But opponents of genetically engineered food and other
activists, for whom Schmeiser has grown to be a folk hero,
vowed to continue their battle against what they claim is an
emerging corporate monopoly over the world's seed and food
supply. Among other approaches, they said they would lobby
Canada's Parliament to change the country's patent law.

"The biotech industry should recognize that today's victory
will be short-lived," said Nadege Adam of the Council of
Canadians, an advocacy group that had supported Schmeiser.
"They need to know that the backlash will come. It will
continue and get stronger."

The ruling was the most definitive judgment to date in a series
of legal controversies over agricultural technology playing out
in the world's courts and legislatures.

Monsanto had sued Schmeiser after learning that much of the
farmer's land was sown with the company's patented Roundup
Ready canola, although he had never purchased the seed from the
company or signed a required grower agreement. The variety has
a gene that makes the plants resistant to Monsanto's Roundup
weed killer, allowing farmers to spray the herbicide freely
without worrying about harming their crop.

Farmers who purchase the seeds are not allowed to collect and
replant seeds from the plants they grow -- even though seed
saving is a long-standing tradition among canola farmers.
Monsanto has argued that seed saving would prevent the company
from recovering its research and development costs, since
first-time buyers would never have to purchase the expensive
seeds again.

Schmeiser claimed the gene-altered plants arrived on his land
around 1997 uninvited, perhaps as a result of pollen blowing
from a neighbor's field. Two lower courts, noting that more
than half of Schmeiser's 1,030 acres bore the high-tech plants
by 1998, concluded that he had infringed Monsanto's patent by
saving and replanting the seeds and ordered him to pay more
than $100,000 in costs and penalties.

The case took on special significance in Canada, whose Supreme
Court had previously ruled that patents cannot be issued on
"higher organisms," including animals and plants. The question
arose: Since Monsanto's Canadian patent was only on canola
genes and cells, could Schmeiser's unintentional possession of
entire plants -- which cannot be patented -- constitute

Although four members of the court flatly said no, five said
yes. But the court reversed the lower courts' monetary
penalties against Schmeiser, saying there was no evidence he
had profited from the added gene because he did not use Roundup
weed killer. The court told each side to pay its own legal

After he and his wife got the news yesterday morning, "we both
had tears in our eyes," Schmeiser said. "But at least we still
have a roof over our heads. This could have broken us

Monsanto has sparked the wrath of farmers in the United States
and Canada by using private detectives to investigate their
fields, and a few jurisdictions have passed laws giving farmers
certain rights and protections in those cases.

Some states have considered legislation that would make biotech
companies liable for windblown pollen that invades fields of
conventional crops, which in some cases are worth more than the
engineered varieties. In Canada, organic farmers have filed a
class action against Monsanto and another company for allegedly
polluting their fields with gene-altered pollen.

Some legal experts said that case might be strengthened by
yesterday's ruling.

"If you're going to claim ownership of this gene wherever it
lands, then you ought to assume responsibility, too," said
Terry Zakreski, Schmeiser's attorney in Saskatoon.

Monsanto has sued scores of farmers in both the United States
and Canada. The company has said it does so only as a last
resort, after settlement talks fail, and only in cases in which
it believes the violations of company patents were knowing and
deliberate. When the company sues, "it is not an accident,"
said Monsanto's Casale. "We have never lost a case."

The issue is not squeezing out "every last nickel" for
Monsanto, he said, but keeping the playing field level. If a
few farmers are able to use the technology free while others
have to pay, the dishonest ones will gain a competitive
advantage on their neighbors, he said.

"I can't tell you the number of farmers I've talked to who have
said, 'I understand the value this technology brings,' " Casale
said. " 'I have no problem paying for this technology. I just
want to know that everybody else is paying, too.' "

But activists said they feared the precedent bode poorly for
the world's subsistence farmers, who are dependent on saving
seed from each year's crop to plant the next year.

"The decision has grave implications for farmers and society
everywhere the gene giants do business," said Pat Mooney,
executive director of ETC Group, an advocacy group that focuses
on the risks of technology and had intervened in the case in
Schmeiser's defense. "The decision not only undermines the
rights of farmers worldwide, but also global food security and
biological diversity."

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