Schmeiser Ordered to Pay Court
Costs in Monsanto Case

The Leader-Post (Regina)

April 30, 2002
Farmer must pay court costs
Saskatchewan News Network; Saskatoon StarPhoenix
BY Murray Lyons

SASKATOON -- The judge who ruled last year that Percy Schmeiser knowingly
violated Monsanto's patent on its Roundup Ready gene in 1998 has now ruled
the Bruno farmer should pay Monsanto court costs of $153,000.

That's in addition to the estimated $19,832 the two sides in the
long-running patent infringement case agreed was profit from Schmeiser's
1998 canola crop.

The nearly $175,000 in damages and court costs works out to about
$175 per acre.

In fact, the amount is likely between $200 and $300 an acre when
Schmeiser's legal bills are counted, points out Monsanto Canada
spokesperson Trish Jordan. She compares this to the $15 an acre technology
use agreement Monsanto requires farmers to pay if they are using a canola
variety that has the Roundup Ready gene inserted.

However, Schmeiser has always maintained he never went to producer
meetings sponsored by Monsanto to find out the rules, because he grew
conventional varieties of canola and always saved seed from one crop to
plant his next crop.

In his judgment released a year ago, Federal Court of Canada Judge Andrew
MacKay ruled that the seed which Schmeiser had saved from his 1997 crop
and used to plant 1,000 acres of canola in 1998 was "known or ought to
have been known by Mr. Schmeiser to be tolerant to Roundup, a glyphosate
herbicide."

At trial, Schmeiser testified that herbicide resistant canola must have
blown into his field in 1997.

"In a court of law, his arguments were found to be implausible," Jordan
said Monday.

The Monsanto spokesperson says the amount of the damages decided upon
by the judge are less important to the company than the principle of
upholding the company's right to license its Roundup Ready gene for use by
seed companies and farmers.

She said Monsanto has committed itself not to use any court awards in
patent infringement cases for general company revenue. Instead, Jordan
says Monsanto will use such court awards to pay for special charitable
contributions.

Justice MacKay, who tried the case in June of 2000, ruled April 17 that
Monsanto should get about two-thirds of the amount in legal fees and
disbursements that the company had submitted for costs.

Monsanto Canada Inc. and its American-based parent, Monsanto Company,
had sought costs in the area of $227,365. However, Toronto patent lawyer
Roger Hughes and associates submitted a bill in the amount of $726,000 to
Monsanto for costs relating to prosecuting the case.

Hughes and an associate will be in Saskatoon May 15 when three judges from
the Federal Court of Appeal hear arguments in the appeal of the original
judgment.

That appeal was filed by Schmeiser's lawyer, Terry Zakreski of Saskatoon.
It lists 17 points as the basis for the appeal.

It argues Judge MacKay erred in ruling a farmer whose field has canola
seed or plants that possess the genetic modification described in the
Monsanto patent has no right to grow, cultivate, harvest or sell any such
seeds or plants should those seeds have come onto his land in some
non-deliberate fashion.

Schmeiser testified at trial that it might have been possible that
herbicide resistant canola got into his field from seed blown off passing
trucks or machinery, from pollen carried to his field by wind, birds or
insects or even swaths of canola that were blown onto his field from a
neighbouring farm. Those arguments again form a basis to his appeal.

At trial, Monsanto brought in a number of expert witnesses who cast doubt
on whether canola seed, for example, could fly off a truck a long way into
a field from the road allowance.

During the trial, Schmeiser submitted several dozen photos he had taken
showing "volunteer" canola plants growing randomly in ditches, beside
power poles and even in the village of Bruno. He also brought in other
Saskatchewan farmers to testify who said Roundup resistant volunteer
canola had been found growing on their fields.

Those farmers testified that Monsanto brought in people to manually pull
out such canola plants from their fields.

In the notice of appeal, Zakreski argues Judge MacKay erred by stating
Monsanto had not waived its patent rights by releasing an "invention" into
the environment that they cannot control.

On Monday, Zakreski says he and Schmeiser were disappointed with the
judge's ruling on court costs and are considering a separate appeal of the
costs issue.

Zakreski had argued the court costs in the case against his client should
be set as a lump sum of $10,000, partly because Monsanto pursued Schmeiser
as a test case "from among many farmers under investigation by Monsanto."

Since the decision by Judge MacKay upholding the validity of Monsanto's
patent, the company has pursued legal action against a number of farmers.

Yorkton area farmer Kelly Ryczak settled out of court with Monsanto last
month for an undisclosed amount after the company sued him for planting
canola in 1999, 2000, and 2001 without a technology use agreement.

In the 20 months since his trial, Schmeiser has made numerous trips around
the globe to speak out against genetically modified organisms and to argue
farmers have a traditional right to save the seed they plant from one crop
to the next.

He even maintains a Web site at www.percyschmeiser.com.

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