There are many people, with a range of political views, who oppose any extension of patent rights. Right-wing fans of the free market dislike the monopolies that patents confer, while on the left are those who object to the principle of ideas as inalienable property. Yet in a rare case, a 71-year-old Canadian farmer is leading the fight to limit a company's claims under patent law.
That farmer, Percy Schmeiser, has taken a patent infringement dispute with Monsanto through Canada's courts, all the way to the highest level. Having lost at the district and appellate stage, Schmeiser appealed to the Supreme Court. On May 8, the Court agreed to hear his case, Percy Schmeiser et al v Monsanto Canada et al. No date for the hearing has been set, but it is expected to happen in the next three months.
In taking on the case, the Court could be preparing to issue a decision that may have important consequences for the future of patent owners' rights in Canada. A ruling in favour of Schmeiser would set a limit to what patent holders could claim as infringement, and would have particular ramifications in the country's farming industry, where Monsanto's rights to enforce parts of its patent portfolio would be curtailed.
The two sides have been in dispute since 1998, when Monsanto alleged that Schmeiser had infringed its patents because he had used canola seeds containing modified genes. These seeds, known as Roundup Ready canola, were altered to allow the canola plants to withstand herbicide spraying. Owners of Roundup Ready canola seeds can spray their plants with Roundup herbicide (also a Monsanto product), and only the surrounding weeds will be killed off, because Roundup Ready plants are genetically altered to resist the herbicide's active agent, glyphosate.
In 2000, 20,000 Canadian farmers used Roundup Ready canola seeds, producing 40% of the country's canola crop. It is easy to see why strict enforcement of its patent rights over Roundup Ready canola is so important to Monsanto.
Schmeiser does not dispute using Roundup Ready seeds, but he says that the seeds were his to use because they drifted onto his land. According to Schmeiser, in 1997 Roundup Ready seeds from a nearby farm drifted on to his farm and these seeds became part of his store for the 1998 harvest. Schmeiser argues that Monsanto's suit raises the spectre of company patent rights trumping traditional farmer's rights.
"A farmer always has the right to use his seed from year to year," says Schmeiser, speaking from his farm near Bruno, in the Saskatchewan province. "What Monsanto is after is that no farmers should use their own seed. They came after me as a seed developer, so that they can control all the market rights to canola seeds using their patent rights."
| Is Canada anti-biotech? In interviews with Canadian newspapers, Percy Schmeiser's lawyer Terry Zakreski has said that he will seek to have Monsanto's patent overturned by referring to the Supreme Court's November 2002 ruling in the Harvard oncomouse case. In that case, the Court ruled that Canada's Patent Act did not allow for the protection of inventions using higher forms of life. But according to David Morrow, chair at Canadian boutique Smart & Biggar, that argument is unlikely to succeed. "Monsanto's patents only claim for the genes and plant cells, not the plants themselves. Those patents are covered because Canada does allow unicellular patents, just not for the whole life-form," says Morrow. But if the Court rules against Monsanto in its case against Schmeiser, that will make it two anti-patent rulings in less than six months from Canada's highest court. How will this affect the country's pioneering biotechnology companies? "I don't think it will affect the biotech industry that much," says Judy Erratt, chair of the national patent prosecution practice at Gowlings. "Canada is a very small market, and people will continue to research here and work and get protection, if not for the higher life form. And they will still be able to claim for the higher life form in the US, or Europe, or Japan." "I think in the political area it looks like we're not a forward-thinking country, not a forward-moving country," adds Erratt. "We don't seem to be moving on the same level as our trading partners, and I think in that area it has the potential to be embarrassing." |
But Monsanto denies these accusations. The company says that it is only fighting Schmeiser in the courts because it believes that he came across the seeds illicitly - it does not believe that the seeds drifted on to his land. "We never, ever, have any intention of exercising our patent rights when the seeds have reached farms through pollen flow or other accidental situations," says Trish Jordan, Monsanto's spokesperson for Canada. "In fact," adds Jordan, "we have schemes that will come and clear up any accidental drift onto other farmers' lands."
In North America, the battle has been portrayed as David versus Goliath, the small farmer against the agribusiness multinational, which is determined to stamp all over him. Monsanto is fighting not just in the legal courts, but also the court of public opinion.
"Some people are more interested in pursuing larger issues - such as genetically modified organisms - and they have a right to do so," says Jordan. "But it is unfortunate that they have chosen to do so in this case. This is not about a farmer's right to save his seed, it's about Monsanto preventing a farmer from knowingly and deliberately misappropriating our technology."
The problem Monsanto faces is that neither court has so far fully endorsed its position. While the lower court did mention the number of ways Schmeiser could have come to own the seed, it did not see the issue to be of importance. "The source of the Roundup resistant canola in [Schmeiser's] 1997 crop is really not significant for the resolution of the issue of infringement which relates to the 1998 crop," wrote the district court in its March 29 2001 judgment.
In its September 4 2002 decision, the appellate court agreed: "The trial judge found as a fact ... that Schmeiser knew or should have known that those plants were [Roundup Ready] when he saved their seeds in 1997 and planted those seeds the following year. It was the cultivation, harvest and sale of the 1998 crop in those circumstances that made Schmeiser vulnerable to Monsanto's infringement."
Schmeiser disputes this, telling MIP that a ruling stating that he should have realized that the plants he was growing were specifically Roundup Ready plants because of their resistance to glyphosate would be "pretty far-reaching, because all our [Canada's] seed stock are now contaminated through cross-pollination and drift seed movement".
This is where Monsanto's case could be heading for trouble. With no finding of fact that Schmeiser illegally got hold of the Roundup Ready seeds, the dispute rests on the more emotive issue of patent rights against property rights. The company is already facing a suit filed in January by angry Saskatchewan farmers of organic canola who claim that cross-pollination and drift from Roundup Ready plants has so far cost them $14 million, and is preventing them from being able to cultivate purely organic crops. (That claim is also being led by Schmeiser's lawyer, Terry Zakreski.)
After agreeing to hear the case, the Court did not give any reason why it chose to do so, but observers suggest that it will take the chance to establish just how far patent owners can go to protect their rights. Whatever its decision, the controversy over genetically modified organisms, and the way companies enforce their rights over them, is sure to continue. For supporters, companies like Monsanto are bringing 21st century ideas to the agriculture industry, and a defeat could set back future investment. Opponents fear that victory for Monsanto would open the floodgates to any number of patent claims that could severely curtail farmers' rights and independence.
"This is an opportunity for the Supreme Court to put a modest limit on a company's patent claims for genetically modified seeds," says Bill Freese, a research analyst at Friends of the Earth. "The idea that a farmer should be held liable for contamination of his crops with genes from a neighbouring field is ridiculous."
|
Canola |
