Percy Schmeiser Responds to Monsanto Court Victory on Plant Patents

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AUTHOR: Percy Schmeiser
TITLE: Percy Schmeiser claims moral and personal victory in Supreme Court
Decision
DATE: 22 May 2004
URL: http://www.percyschmeiser.com/decisioncomments.htm
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Commentary from GRAIN:

Percy Schmeiser's long legal battle against Monsanto has reached an end. On
21 May 2004, the Supreme Court of Canada ruled, in a tight 5-4 decision,
that the farmer was guilty of violating Monsanto's patent on a gene for
resistance to glyphosate ("Roundup", a broad-spectrum herbicide). The Court
determined that patent rights on a gene extend to the living organism in
which it is found and, consequently, that saving and planting seed
containing a patented gene without authorisation from the patent holder is
illegal.

This ruling follows a ground breaking decision by the same court, in the
Harvard oncomouse case, to reject patents on higher life forms. The judges
were equally aware that no Canadian government has put forward a policy or
law that prevents farmers from saving seed on their own farm, although the
Plant Breeders' Rights Act makes swapping or selling seed harvested from
protected varieties without authorisation illegal. Canadian farmers have a
long and strong tradition of seed saving, especially in the western prairies
where Schmeiser is from. Canola, the crop Schmeiser grew, is itself a
product of farmer seed saving, farmer selection and publically funded
research. It's an example of what plant breeding can accomplish without
patents. It's also an example of why co-existence between GM (genetically
modified) and non-GM crops is impossible. Today, all of the canola acreage
in Western Canada is contaminated with Monsanto's patented "Roundup-Ready"
(RR) gene.

None of this mattered to the majority of the court. Their decision focused
on a narrow interpretation of case law, treating plants like any other
manufactured good that the Canadian patent system was designed for, even
though the judges repeatedly pointed out the special nature of biological
"inventions". They reasoned that the owner of a patented gene should have
monopoly rights over any living organism containing that gene, no matter how
it got there and even if, as the majority of judges confirmed, the plants
themselves are not patentable. It didn't matter that Schmeiser never
deliberately planted Monsanto seeds in his fields. He committed a crime
merely by growing plants containing Monsanto's gene.

With this Supreme Court decision, not only are farmers being told they have
to suffer the economic, ecological and social effects of GM contamination
but they will held in violation of someone's property right for it. Which
may mean that more farmers will try to escape the threat of legal action by
buying Monsanto's seeds and signing a technology use agreement. Otherwise,
like soybean farmers in Brazil, they could expect to find Monsanto at the
grain elevator, waiting to test their harvest for the presence of patented
genes and charge them royalties when the genes are detected.

But the Supreme Court decision could also trigger a major backlash against
Monsanto. The true face of the "gene revolution" and of the control handed
to transnational corporations through patents on life has been laid bare. As
Schmeiser says, "This ruling is an injustice." The struggle now leaves the
court and goes firmly into the political arena.
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PERCY SCHMEISER CLAIMS MORAL AND PERSONAL VICTORY IN
SUPREME COURT DECISION

by Percy Schmeiser

22 May 2004

The Supreme Court handed down their decision yesterday and I have mixed
emotions to it. I have received many phone calls and emails from concerned
supporters and friends and I appreciate this very much. It was a personal
victory and I want to thank my lawyer Terry Zakreski for his dedication and
perseverance on my behalf. On the broader issues of my case, I regret that
things did not work out for my supporters.

I do not have to pay Monsanto one cent for profits, damages, penalties,
court costs or their technology use fee of $15/acre. I feel good about this
ruling, as I have said all along that I didn't take advantage or profit from
Monsanto's technology in my fields. I am pleased that the Supreme Court felt
that way as well. It has been my position that I didn't want their
technology in my fields, that I didn't use their technology by spraying,
didn't sell their technology as seed to another farmer and didn't earn any
profit from it. I felt it hard to accept that I should have to pay them for
it.

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.

Farmer's should be concerned about this judgment as they now may lose their
ability to continue with this practice. I believe that this ruling is an
injustice and Parliament must act to ensure that farmer's rights are
protected. The playing field between farmer's rights and the bio-tech
companies rights has been tilted towards the companies with this decision.

I have always campaign 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.

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GOING FURTHER (compiled by GRAIN)

Full text of the Canada Supreme Court decision (Monsanto Canada Inc v
Schmeiser), Ottawa, 21 May 2004:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc034.wpd.html

National Farmers' Union, "Supreme Court Decision Sets Dangerous Precedent,"
Saskatoon, 21 May 2004.
http://www.nfu.ca/Releases/Supreme%20Court%20decision%20sets%20dangerous%20p
recedent.pdf
or download from http://www.nfu.ca/section1.html

Anna Maria Tremonti, "The Current", CBC Radio One interview with Percy
Schmeiser, Saskatoon, 20 May 2004 (Real Media format).
http://media.cbc.ca:8080/ramgen/cbc.ca/thecurrent/media/200405/20040520thecu
rrent_sec2.rm
or go to http://www.cbc.ca/thecurrent/2004/200405/20040520.html and scroll
down to part 2

Stephen Leahy, "Canada's Top Court Backs Monsanto Against Farmer", Inter
Press Service, 21 May 2004.
http://www.ipsnews.net/interna.asp?idnews=23862

ETC Group, "Canadian Supreme Court Tramples Farmers' Rights -- Affirms
Corporate Monopoly on Higher Life Forms", news release, Winnipeg, 21 May
2004.
http://www.etcgroup.org/article.asp?newsid=454

"Biotech giant wins Supreme Court battle", CBC News, 21 May 2004.
http://www.cbc.ca/stories/2004/05/21/canada/schmeiser_monsanto040521

Further news stories via Google:
http://news.google.com/news?ie=UTF-8&oe=utf8&persist=1&hl=en&client=google&n
ewsclusterurl=http://www.ipsnews.net/interna.asp%3Fidnews%3D23862

Meanwhile, on the other side of the Canadian border, farmers and state
legislators are agitating for the right to save seed despite patent law in
the United States:
-- Danny Henley, "Seed buying contracts may become state issue", Morris News
Service, 15 May 2004.
http://www.cjonline.com/stories/051504/bus_seed.shtml
-- Associated Press, "Lawmaker Monsanto agreement unfair to U.S. growers",
Hannibal (Missouri), 18 May 2004.
http://www.kansascity.com/mld/kansascity/news/local/8695844.htm

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