[pf] Canadian Percy Schmeiser's fight against Monsanto; ENS

· This may have been covered in Jill's debate with David A. This contains:
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Schmeiser's independent testing of his fields found significantly less of
the Roundup Ready variety, ranging from zero to 40 percent. 

In the ruling, Judge MacKay said, "A farmer whose field contains seed or
plants originating from seed spilled into them, or blown as seed, in swaths
from a neighbour’s land or even growing from germination by pollen carried
into his field from elsewhere by insects, birds, or by the wind, may own
the seed or plants on his land even if he did not set about to plant them.
He does not, however, own the right to _the_use_of_ the patented gene, or
of the seed or plant containing the patented gene or cell." 

... Schmeiser [reckoned he] did not use the patent, because he did not
spray the 1998 canola crop with Roundup after it had commenced growing.
Schmeiser told the court he did not make use of the invention as the
inventor intended and so, did not use the patented gene or cell. 

But the judge ruled, "... Growth of the seed, reproducing the patented gene
and cell, and sale of the harvested crop constitutes taking the essence of
the plaintiffs’ invention, using it, without permission. In so doing the
defendants infringed upon the patent interests of the plaintiffs." 
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· I /think/ the judge is saying that ownership (first part of judgement
above) does not include being free to do what you wish with what you own,
at least where someone else's intellectual property is embodied in what you
own.

· I'm not at all clear on this, but it seems the judge is assuming there
was some extra benefit to Schmeiser that he obtained by selling this grain,
that he would not have gotten if he had pressed it for oil etc for his own
use.

· I don't see it myself; as the article points out, "A lot of farmers who
have grown genetically altered canola find it has too many greens inside
the kernels. That means it doesn't ripen and you lose 50 percent of the
value." So the “taking the essence of the plaintiffs’ invention and using
it without permission” was actually detrimental to him. 

· Perhaps that makes no difference, in law.   D.

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http://ens.lycos.com/ens/apr2001/2001L-04-03-01.html
  is:

Canadian Farmer Loses Biotech Seed Case to Monsanto

By Jane Akre

SASKATOON, Saskatchewan, April 3, 2001 (ENS) - A farmer from western
Saskatchewan, Canada plans to continue fighting the giant biotechnology
company Monsanto for the right of farmers worldwide to save seed for next
year's crops. 

Seventy year old Percy Schmeiser of Bruno, a small town east of Saskatoon,
plans to appeal a Federal Court ruling against him Thursday, that grants
Monsanto thousands of dollars in damages for theft of its patented canola
seed, also known as rapeseed. 

http://ens.lycos.com/ens/pics16/schmeiserpercy.jpg
Saskatchewan farmer Percy Schmeiser (Photo courtesy Percy Schmeiser)

"If I get the backing from farmers, people and organizations around the
world, I'll know that by the end of the week, it looks like I will go ahead
with the appeal," says Schmeiser. 
In his ruling in the lawsuit brought by Monsanto Canada Inc., Judge W.
Andrew MacKay ordered Schmeiser to pay the company a US$10,000 user fee and
up to US$75,000 in profits from his 1998 crop of canola. The decision says
the farmer knew or should have known he was using Monsanto's property, the
company's canola seeds. 

The ruling also prohibits Schmeiser from using any saved canola seed to
plant future crops. 

Trish Jordan of Monsanto Canada, says the farmer was using the company's
intellectual property without compensation, and this is a case about patent
protection. "We invest a lot of time and energy in bringing products to
market, we are in the business of recouping those costs," said Jordan. 

For his part, Schmeiser says he never used and never wanted Monsanto's
seed, the plants from which are genetically engineered to withstand a
dousing of the herbicide Roundup, also developed by Monsanto. 

http://ens.lycos.com/ens/pics11/canola.jpg
Oilseed rape, known as canola, in a Saskatchewan field (Photo Ralph Goff
courtesy FarmPictures.com)

During a two and a half week trial last June, Schmeiser testified that his
field became contaminated with pollen from the genetically altered canola
growing in his neighbor's field and from seed spilling from trucks that
travel alongside his 1,400 acre farm. Monsanto does not require a buffer
zone around its canola plants. 
Jordan says that claim is ridiculous because the amount of genetically
altered canola found in Schmeiser's fields ranged from 95 to 98 percent.
"Generally the issue of pollen flow is very small," according to Jordan.
She says only two of every 10,000 plants could have transferred that way. 

Schmeiser's independent testing of his fields found significantly less of
the Roundup Ready variety, ranging from zero to 40 percent. 

In the ruling, Judge MacKay said, "A farmer whose field contains seed or
plants originating from seed spilled into them, or blown as seed, in swaths
from a neighbour’s land or even growing from germination by pollen carried
into his field from elsewhere by insects, birds, or by the wind, may own
the seed or plants on his land even if he did not set about to plant them.
He does not, however, own the right to the use of the patented gene, or of
the seed or plant containing the patented gene or cell." 

The judge upheld Monsanto's claim that Schmeiser infringed the company's
patent by growing, in 1998, seed that the farmer knew was from his 1997
crop and was from plants that were Roundup resistant. "By so doing the
defendants reproduced the patented gene and cells. The canola crop so grown
in 1998 was harvested and sold by the defendants," the judge found. 

The principal defence raised by Schmeiser is that he did not use the patent
because he did not spray the 1998 canola crop with Roundup after it had
commenced growing. Schmeiser says told the court he did not make use of the
invention as the inventor intended and so, did not use the patented gene or
cell. 

But the judge ruled, "In my opinion, whether or not that crop was sprayed
with Roundup during its growing period is not important. Growth of the
seed, reproducing the patented gene and cell, and sale of the harvested
crop constitutes taking the essence of the plaintiffs’ invention, using it,
without permission. In so doing the defendants infringed upon the patent
interests of the plaintiffs." 

http://ens.lycos.com/ens/pics11/canolaprods.jpg
Oilseed rape is processed into canola oil and margarine and oilseed cake
for livestock. (Photo courtesy Canola Council of Canada)

Schmeiser's case has become a global symbol of the conflict between farmers
who want to work the land with traditional techniques and high-tech
companies transforming fields and food with genetic engineering. 
"This decision has the potential of making every seed saver in western
Canada a patent infringer," says attorney Terry Zakreski, who represented
Schmeiser in court. 

Jordan says her company is "not in the business of making threats to
farmers," and that this case is not about farmer's rights. Instead, she
says Monsanto wants to help farmers and has a program that aids them in
ridding their fields of any unwanted genetically altered seed and plants. 

Monsanto sends private investigators onto farmers' fields to look for
canola from its patented seed. The company routinely audits farmer's fields
either randomly or with information received from an anonymous tip line. 

The Schmeiser case is the first in Canada to go to court while dozens of
similar lawsuits have been filed against U.S. farmers. 

According to Monsanto, about six million acres in Canada are planted with
Roundup Ready canola and the popularity of the seed is growing. While
canola is the second most common crop in Canada, in the United States it is
grown only in a few northern states. 

In the late 1940s, Schmeiser was one of the first western Canadian farmers
to begin growing rapeseed, then used as a lubricating oil. In the early
1980s, food uses were found for rapeseed, and it began to be marketed as
canola, and used as a light cooking oil. 

Farmers from as far away as Montana came to Schmeiser to learn how he
minimized weeds while getting high crop yields. 

Schmeiser says he has been saving seed each year to plant the next year's
crop. In this ancient process, he has found the Monsanto genetically
altered canola seeds to be inferior to traditional seeds. 

"A lot of farmers who have grown genetically altered canola find it has too
many greens inside the kernels. That means it doesn't ripen and you lose 50
percent of the value," he says. 

http://ens.lycos.com/ens/pics16/schmeiserpercyaward.jpg
Saskatchewan farmer Percy Schmeiser holds the Mahatma Gandhi award he
received from Indian farmers. (Photo courtesy Percy Schmeiser)

Schmeiser says in the last three days he has heard from about 400 people
from every continent who pledge to continue to support him. 
An appeal of the court's decision would take about a year and close to
US$100,000. Schmeiser says he is strong enough to continue, although this
fight, he says, has been tougher than his three ascents of Mount Everest.
He has developed political resiliancy during his years as Bruno’s mayor and
as a member of the Saskatchewan provincial parliament. 

His wife, Louise, has not fared as well. She suffers from high blood
pressure and recently blacked out falling down the basement steps. Still
Louise and Percy both say they are in this for the long haul. 

"What really helps is I look at my children and grandchildren, and I have
14, and I want to leave a legacy for them, food and land without poisons.
That gives me an inspiration." 

Also providing inspiration, Schmeiser says, are the people he has met at
seed conferences where he has been a speaker in India, Pakistan,
Bangladesh, New Zealand and the United States. 

When things get very bad, Schmeiser says he treasures the Mahatma Gandhi
Award he received while he was in India in October, 2000. The award is in
recognition of working for the betterment of humankind in a non-violent
way. It was presented to the Canadian farmer by the farmers of India who
are fighting genetic engineering. "That's something Monsanto can't take
away from me," Schmeiser says. 


Read the entire court decision (in PDF form) at: 
http://www.fct-cf.gc.ca/bulletins/whatsnew/T1593-98.pdf 

© Environment News Service (ENS) 2001. All Rights Reserved.
  Other news:
http://ens.lycos.com/index.html

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