Schmeiser/Monsanto Court Battle Generates Global Interest

Unlikely hero: Canadian farmer stands up against Monsanto in biotech battle

By Mike Lee -- Bee Staff Writer

Sacramento Bee, January 19, 2004
http://www.sacbee.com/content/business/story/8127820p-9059857c.html

After nearly 50 years farming canola, Canadian grower Percy Schmeiser had
his eye on retirement when a lawsuit from the world's largest biotech seed
company landed on his doorstep, accusing him of gene theft.

Now, as his appeal heads to Canada's top court Tuesday, Schmeiser has become
an unlikely hero for the growing movement against genetic engineering of
food crops. Instead of retiring in rural Saskatchewan, the wiry 73-year-old
travels the globe to tell his story of resistance against gene giant
Monsanto Co.

He sums up his sudden celebrity with typical humility: "It's no longer my
case, it's the world's case."

It matters nothing to his audiences that he was found guilty of patent
violations by the Canadian courts, which agree with Monsanto that no matter
how weedkiller-tolerant genes entered Schmeiser's seeds, he re-planted them
illegally in 1998.

At Monsanto Canada, spokeswoman Trish Jordan said the past court decisions
against Schmeiser speak for themselves. "When Mr. Schmeiser told his stories
in court, they weren't found to be believable," she said.

Regardless of the case's outcome, however, environmentalist Kenny Ausubel
said Monsanto "picked the wrong guy" for the first big test of patent law
for biotech seeds -- a case critical to the maturing biotech crop industry.

Check in with Schmeiser most any month and you can find him hailing crowds
in places as far-flung as Japan, Germany or South Africa. Last fall, he and
his wife, Louise, drove 1,900 miles from their home in the tiny town of
Bruno, Saskatchewan, to San Rafael.

There, Schmeiser greeted 3,000 environmentalists, aging hippies and
counterculture enthusiasts at Bioneers, Ausubel's annual conference
exploring environmental issues.

Outside, long-haired students performed yoga and mystical dances. Inside,
Schmeiser -- an unassuming, trim man in glasses, a royal blue button-down
shirt and slacks -- stepped to the podium.

"We don't know how many good years we have left, but we are going to go down
fighting," he told the crowd, his eyes tearing up as they responded with
repeated standing ovations.

After his speech, Schmeiser was surrounded by fans, including Marie Sears, a
nurse who traveled from Minnesota to hear him speak. Getting his autograph
made her gush: "He is an inspiration and he is a true hero."

Schmeiser has grown used to such receptions; it's the way that he knows it's
worth risking the loss of his farm and even his wife's health to take on a
multinational corporation.

At its core, Schmeiser's case is about ownership of genes -- developed by
companies at a cost of tens of millions of dollars -- that make crops immune
to herbicides. That genetic trick allows farmers to control weeds without
harming their crops.

In addition to charging extra for their biotech seeds, companies demand that
farmers plant them only once, interrupting the age-old practice of saving
seed from year to year and making farmers beholden to corporations like
never before.

Nonetheless, biotech crops have proven popular with farmers around the
world. They were planted on an estimated 167 million acres last year, up 15
percent from 2002, the New York-based International Service for the
Acquisition of Agri-biotech Applications announced last week.

The trouble is, genetically engineered genes disregard boundaries, traveling
widely through North America in pollen, seed and crops. They regularly end
up where they aren't welcome, such as in organic fields, countries that have
banned biotech crops or Schmeiser's canola fields.

The next stop in Schmeiser's world tour is Tuesday at the Supreme Court of
Canada. It's the first time a country's top court will address the question
of gene patent infringement, according to legal experts.

Journalists from as far away as France and Japan are expected to show up in
Ottawa to document the historical moment in biotech history.

Though a decision likely won't be issued for weeks or even months, the
hearing could clarify at least one fuzzy area: whether the Supreme Court of
Canada accepted Schmeiser's appeal because it wanted to expand or contract
companies' ability to patent life forms.

Technically, the ruling won't matter in the United States, said Donald L.
Uchtmann, a professor of agricultural law at the University of Illinois,
Urbana-Champaign.

"Having said that ... it serves as a model of how a nation with a similar
heritage has dealt with this issue and these particular facts," Uchtmann
said. "(It) at least causes Americans to think about whether such a result
is just in the U.S."

The case is being monitored in California, especially by rice farmers
worried about the planned introduction of biotech rice into the state.

But perhaps no one is watching more closely than Arnold Taylor, president of
the Saskatchewan Organic Directorate. His group has sued Aventis and
Monsanto, alleging that they have ruined the province's organic canola
market by failing to prevent genetic contamination of canola seed.

Even if Schmeiser loses, the organic growers could get a boost as long as
the Canadian Supreme Court maintains that biotech genes in his fields belong
to Monsanto. "We are saying, 'OK, you own it. The flip side is that you are
responsible for the damages,' " Taylor said.

While Monsanto has gone after hundreds of farmers for patent infringement in
the United States and Canada, few have stood up to the company.

And none has created more of a public relations problem than Schmeiser, who
motivates his adoring crowds by drawing on public speaking experience gained
during a lifetime of provincial politics.

He even has a Web site - www.percyschmeiser.com -- to promote what he calls
a "classic David versus Goliath struggle" and direct supporters how to
donate to his cause.

Schmeiser said he's raised $55,000 from donations -- some of them still just
pledges -- but his legal bills and judgments are roughly 10 times that. He
could even lose his farm, he said, if he loses this final case.

"How can an average person ever stand up to multibillion-dollar
corporations?" asked Schmeiser. "If I would not have had help from people
all over the world, I could not have done it."

Schmeiser started developing canola seeds to resist prairie diseases in the
1950s. He then took time away from his farm and his implement dealership to
serve as mayor of Bruno (population 650) and in the provincial Parliament
for more than 30 years.

He and Louise also spent several winters traveling the Southern Hemisphere
with humanitarian aid teams. They own about 1,400 acres, but now lease most
of their land to other farmers.

The result was a man gifted at the public podium, savvy about politics and
wary of the alleged ways corporations and governments have oppressed
citizens of developing countries.

Schmeiser's own troubles started in 1997 when he noticed something unusual
after farm workers had sprayed chemicals to kill weeds around roadside power
poles.

Said Schmeiser: "I came past the farm one day and everything was brown
except a few plants -- canola plants. Everything should have been dead
because it had been sprayed" with glyphosate, the technical name for
Monsanto's flagship weedkiller, Roundup.

The anomaly perplexed the veteran seed breeder. He grabbed his sprayer and
went out and tried again. Again, the plants survived.

Herbicide-tolerant canola had been commercialized in 1996 in Canada, and it
quickly spread across the prairie. Today, about 70 percent of the crop is
genetically engineered -- about 8 million acres.

Schmeiser said he hadn't heard about the new technology in 1997. He figured
the roadside plants had simply grown resistant to Roundup after years of
spraying around power poles. "At the time, we didn't even know there was
such a thing as a patent on seeds," he said.

But he soon would. That same year, Monsanto hired a detective company to
look for gene thieves in Saskatchewan.

Schmeiser was targeted the same way most of Monsanto's suspects are -- after
an anonymous tip that he was illegally growing patented seeds. Investigators
sampled canola from the roadside bordering Schmeiser's farm and determined
it was herbicide-tolerant.

They alerted Schmeiser to the problem and the court record simply says
Schmeiser "did not treat seriously the concern raised" by the investigators.
He later said in an interview that he thought it was legal for farmers to
save their own seeds, no matter what.

Through Schmeiser's regular practice of saving seeds for the next year's
crop, herbicide-resistant seeds were widely spread across about 1,000 acres
of his canola the following year.

That prompted Monsanto to file its very first claim against a grower, aimed
at protecting both the company's intellectual property and other growers who
were paying a fee of $15 an acre for access to the novel seed technology,
above the cost of the seeds.

"His was our first case ever that we said, 'OK, we have got this program in
place and we have to find out if this patent is valid,' " said Jordan at
Monsanto. "The only way you can test this is to say, 'Hey, we think this guy
is infringing on our patent and we want to do something about it.' "

Today, in the United States, Monsanto targets about 100 growers a year -- a
tiny fraction of the tens of thousands of farmers who plant biotech crops.
Unlike Schmeiser, however, most farmers choose to settle out of court.

Monsanto says that after it pays legal fees, court settlement money is given
to agriculture-related youth and scholarship programs at a pace of about
$15,000 a year.

The Canadian federal judge who first heard Schmeiser's case said the farmer
should have known some of the seeds he saved were Roundup-tolerant before he
planted his 1998 crop, regardless of how the genes got into his fields in
the first place.

"His infringement arises not simply from occasional or limited
contamination," Judge Andrew MacKay ruled. "Growth of the seed, reproducing
the patented gene and cell, and sale of the harvested crop constitutes
taking the essence of the plaintiff's invention, using it without
permission."

In 2002, three appeals court judges also sided with Monsanto.

Despite the mounting legal losses, Schmeiser has received a huge boost from
press coverage, which has generated worldwide interest and sympathy. That,
in turn, brought invitations from around the globe to warn anti-biotech
forces about the dangers of gene giants.

Schmeiser said he doesn't charge speaking fees, asking instead to be
reimbursed for travel costs and that groups which bring him in consider
donating to his legal defense.

Unlike her husband, who talks easily with the press, Louise Schmeiser is
reticent. She had enough of public life when Percy Schmeiser was in
politics. She suffers from high blood pressure that her husband blames on
ongoing scrutiny of their farm by Monsanto.

But she is not bitter about the hard road they've traveled for the past six
years fighting biotech crops, also known as genetically modified organisms.

"I hope that we can make a difference," she said. "Before we got involved
with this court case, a lot of people didn't know what GMO's stood for."

After the Canadian Supreme Court ruling, Schmeiser hopes to slow down. "How
much can my health take?" he asks.

Yet already he's planning another trip to California this winter to support
anti-biotech forces in Mendocino County who are trying to prevent the
growing of biotech crops in their county through a March ballot measure.

And Schmeiser knows that if he wins in court, it will be especially hard to
say no to the adoring crowds that turn up everywhere he speaks.

Monsanto vs. Schmeiser
1997: Veteran Canadian farmer Percy Schmeiser discovers popular herbicide
Roundup didn't kill canola plants on the roadside bordering his farm.
Following his standard practice, Schmeiser saves seed to reuse the following
year.

1998: Schmeiser is targeted by Monsanto for alleged biotech seed patent
violations after detectives find herbicide-tolerant seed spread across about
1,000 acres of his canola fields. Schmeiser maintains his reuse of the
modified seed was inadvertent.

2001: Canadian federal judge supports Monsanto's patent infringement case,
saying it doesn't matter how the seed got onto Schmeiser's land or whether
he intended to benefit from its reuse. Judge orders Schmeiser to pay
Monsanto his 1998 profits and court costs, roughly $173,000 Canadian.

2002: A three-judge appeals panel dismisses Schmeiser's appeal.

2003: In May, the Supreme Court agrees to hear the case in Ottawa.

Tuesday: The court is expected to try to balance the interests of industry
in having a strong patent law with the broader social and practical
implications of giving companies control over life forms.