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Supreme Court rules 5-4 for Monsanto's right to patent rights on genetically modified seed

Percy Schmeiser

The court ruled that Percy Schmeiser did not have to pay Monsanto the $19K ordered by the lower court.

Nonetheless, the ruling in favour of Monsanto is a huge loss for farmers.

This ruling effectively installs feudalism. The feudal lords who owned the land and allowed the peasants to live on it in exchange for their labour in pre-industrial Europe at least had names and faces. Some of these lords were humane individuals who could be reasoned with. Ultimately the entire system was so unfair that bloody revolution was the only path to rectify it.

Monsanto, by contrast, is a global, faceless profit-driven machine who has gained the legal right to control the seed which is grown on our fields and ultimately what we are all going to eat.

This is a dark day for all of us.

Even if it turns out that a lot of the genetically modified product is not dangerous, the promotion of monoculture will narrow our experience of food.


Percy Schmeiser:
David against Goliath in fighting agribiz

inJusticebusters are proud to present this page backgrounding farmer Percy Schmeiser's stand against Monsanto's effort's to ruin him. Mr. Schmeiser has gained international attention as a champion of caution and good sense in the profit-driven drive towards monoculture.

The proceedings in his civil suit demonstrate that while the Rules of Court can be hijacked by lawyers who's entire careers are dedicated to silencing justice-fighters, they can also be used by litigants standing up to them.

According to news reports, it was not Monsanto spies coming illegally onto his land but neighbours ratting him out who got Mr. Schmeiser into court. This would accord with the sad state of community in this province which has become so impoverished that people without conscience will call crime-stoppers just to get rent money. Shame, shame.


Schmeiser case heads for top court

Terry Zakreski has been getting up early to watch television Saturday mornings of late, preparing for his big date next Tuesday at the Supreme Court of Canada in the case of Schmeiser versus Monsanto.

Unlike many young lawyers in the past who had little guide as to what they could expect in their first-ever appearance before Canada's nine high court judges, Zakreski has had the advantage of watching Supreme Court proceedings on C-PAC, the country's political specialty channel.

It's all part of the Saskatoon lawyer's preparation for the high-stakes and high-profile appeal that he's prepared on behalf of his client, combative Bruno farmer Percy Schmeiser.

Zakreski and Schmeiser are entering the final chapter in the legal war with Monsanto Canada Inc. over Schmeiser growing Roundup Ready canola in his 1997 and 1998 crops.

The global seed and chemical giant won a patent infringement judgment against Schmeiser almost three years ago.

The Schmeiser case has opened up a whole new legal avenue for Zakreski's work in civil litigation.

Since representing Schmeiser, he has also become the main counsel for a group of organic farmers taking Monsanto to court for not being able to stop the spread of the Roundup Ready gene in the environment.

"It's such a big thing," Zakreski said. "It's had a way of taking over everything. It's become a huge thing for me."

One factor that has shaped his final appeal of the Schmeiser case is the Supreme Court's decision in the so-called Harvard Mouse case.

Despite the fact this genetically altered rodent intended for lab research has been patented in many countries, the Supreme Court upheld the view of the Canadian patent office that it could not be patented in Canada.

That ruling has come down since Zakreski took the Schmeiser case to its first appeal level at the Federal Court of Appeal.

Since the Harvard Mouse decision, Zakreski has narrowed the basis of his appeal even further. In fact, Zakreski notes in his statement of facts that the Supreme Court in the Harvard Mouse case determined that "higher life forms are outside the definition of an 'invention' in the Patent Act."

But Monsanto spokesperson Trish Jordan says Monsanto's legal position doesn't see any quicksand on the life form issue.

"We feel quite confident because the courts and Parliament have already decided or determined that a plant is a lower life form," she said. "The major difference between Harvard Mouse and this (the Roundup Ready gene) patent, or any other patent available on plants with unique genes or cells, is mammals versus plants."

In Monsanto's memorandum of fact, Roger Hughes, the company's Toronto-based patent lawyer, also argues that Harvard Mouse is different from the Schmeiser-Monsanto case, because in the Harvard Mouse case there never was a patent.

"In Harvard Mouse, the onus was on the person seeking those particular claims to persuade the Commissioner of Patents that they were proper, and having been turned down, to persuade the courts," Hughes states.

"Here, a patent has been allowed. The onus rests on Schmeiser to demonstrate that the commissioner and the lower courts were wrong."

Zakreski also argues his client never "used" the Monsanto-patented Roundup Ready gene in the normal sense of the word "use."

At the trial, Schmeiser testified he had no idea how Roundup Ready canola got into his fields and he never sprayed the crop with Roundup.

"Since Mr. Schmeiser did not spray Roundup on a growing crop, he did not employ or exploit the Roundup Ready trait in his crops," Zakreski argues.

Hughes, in his submission, argues "use" has been given broad meaning in the patent act.

"By planting, growing, cultivating, harvesting and selling that which they knew contained Monsanto's patented genes and cells, Schmeiser infringed the patent," Hughes writes. "The claims do not depend on the application of glyphosate (the generic name for Roundup).

Since losing the case, Schmeiser has become a globe-trotting symbol of individual farmers versus big corporations, with Schmeiser branding himself as a seed saver whose rights have been taken away.

The cause celebre nature of the Schmeiser-Monsanto battle is reflected in the fact that there are intervenors at the Supreme Court on both sides of the question as to whether novel traits such as Monsanto's Roundup Ready gene can, or should be, patented.

The Canola Growers Association of Canada and Saskatoon research umbrella group, Ag-West Biotech Inc., line up with BIOTECanada and the Canadian Seed Trade Association on the side of patenting seed and genes within seeds.

Monsanto's Trish Jordan says the intervenors bring a larger perspective to the implications of the Schmeiser-Monsanto case.

"It's not specifically the issue of Monsanto and Roundup Ready canola, but (they are) looking at the larger issues," she said. "We feel strongly that respect for intellectual property is important to all involved in agriculture whether that's technology developers, farmers, breeders, seed growers, distributors. We all need it."

On the other side, the National Farmers Union (NFU) is part of a larger umbrella group, including the Council of Canadians, the Attorney General of Ontario and the Sierra Club of Canada, that opposes applying patents to life forms, including plants.

Allan-area farmer Terry Boehm, NFU national vice-president, says the fact Monsanto can't control the spread of its gene in the environment has hurt all farmers' rights.

He says Monsanto has taken its Roundup Ready gene and inserted it into crops that were developed by public research agencies paid for by taxpayers.

"We think patents are inappropriate, and the kind of monopoly control it confers on Monsanto is inappropriate, and it presents grave consequences for farmers and seed savers and really for bio-diversity," Boehm said.

But the Canola Growers of Canada points out that, in 2003's crop, 90 per cent of the canola crop in Canada was grown using one of three major competing biotech systems that allow a farmer to spray his crop for weeds even after the canola has emerged from the ground.

Rick White, the policy analyst for the canola growers lobby group, says Roundup Ready varieties alone accounted for 60 per cent of the 2003 canola crop.

He said canola growers intervened in the Schmeiser case to remind the Supreme Court of the importance to farmers of having new technology in crops.

"We felt it very important to get involved in this case because this technology, which is patented, could be affected by this decision," he said. "It's a very important technology to our growers," White said.


Schmeiser ordered to pay $153,000 in court costs

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.

Schmeiser testified at his trial in 2000 that he had no idea why in 1997 some canola plants on a particular field he had sprayed with Roundup had survived.

In his judgment released a year ago, Federal Court of Canada Justice Andrew MacKay ruled 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.

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 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 farmer.


"Farmer v. Monsanto: GM Seed Fight in Canada's Highest Court"

SASKATOON Saskatchewan, Canada, June 19, 2000 (ENS) -- On the Great Plains of Canada, farmer Percy Schmeiser has engaged in a David v. Goliath battle which could save farmers and consumers around the world from a genetically modified food nightmare beyond anything they have experienced so far.

Farmer Schmeiser's fame in North America is guaranteed to cross the Atlantic as details of his epic tussle in Canada's Supreme Court with the GM seed company Monsanto gets up steam.

Monsanto has accused the farmer of "stealing" its rape oil super-seeds. Schmeiser is counter-suing the giant American biotechnology company for £4.2 million for polluting his genetically modified (GM) free farmland without his knowledge.

"If just one farmer in Britain or Europe gets one of these Monsanto rape oil seeds that invaded my land, there'll be nobody who won't have contaminated crops in just a matter of years - whether they like it or not," said 69-year-old Schmeiser as his legal team confronted Monsanto's lawyers in the prairie city of Saskatoon.

The outcome of the landmark Schmeiser v. Monsanto case could influence how much control biotechnology companies like Monsanto and Advanta - the Canadian company which this year inadvertently distributed genetically contaminated rape oil seed in Europe - have over the world's food supply in this century.

"Farmers here are calling it a reign of terror," said Schmeiser as he recalled the bizarre chain of events which brought him into unyielding conflict with Monsanto.

Schmeiser, who has grown oilseed rape, known as canola, on his 1,400 acres for 40 years, first detected trouble three summers ago. He sprayed a powerful Monsanto weed killer, called Roundup, around electricity poles and in ditches on the borders of his farm. The herbicide killed all the weeds except for a thin scattering of oilseed rape plants, which stubbornly refused to die.

Schmeiser had been crossbreeding his own oilseed rape for more than 30 years, saving seeds from each year's harvest to replant his fields the following season - as farmers have done for thousands of years. Now, he wondered, had he accidentally created some kind of Frankenstein mutant? The same thing happened when he sprayed a trial strip 30 yards wide in the middle of one of his oilseed rape fields near the hamlet of Bruno, Saskatchewan. Again, some of the plants refused to die.

Schmeiser mentioned his Frankenstein plants to neighbouring farmers and next, unknown to him at first, private investigators arrived uninvited and snipped samples of his crops for DNA testing.

Some of the samples tested positive for a gene Monsanto had genetically engineered into oilseed rape to produce an entirely new high yielding variety the company christened Roundup Ready canola. The new gene, taken from a bacterium, enabled Roundup Ready canola to survive Monsanto's flagship Roundup weedkiller.

Oilseed rape is processed into canola oil and margarine and oilseed cake for livestock. North American farmers were deeply impressed by the Monsanto breakthrough: Roundup Ready canola guaranteed increased profit margins because there was no longer any need for expensive herbicides. "Cleaner fields, higher yields," went the marketing slogan.

In Canada some 20,000 farmers use the genetically modified rapeseed. But Monsanto, whose 210-acre complex near St. Louis, Missouri is reputed to be the biggest biotechnology research centre in the world, needed to recover the huge investment - estimated at some £250 million over ten years - it had made into developing Roundup Ready canola.

The company therefore patented the new gene and required farmers who bought the seed to sign a Technology Use Agreement preventing them from saving or re-planting the seed or selling it to others.

To get Roundup Ready canola's advantages farmers have to buy new seeds from Monsanto every year. The agreement also states they must destroy any leftover seed each year and let Monsanto inspect their fields.

Denying that the contract had Stalinist overtones, Craig Evans, Monsanto biotechnology manager, said the company has the legal right to enforce its patent because "the gene still belongs to Monsanto, and you need the Technology Agreement to use the gene." In effect, Monsanto merely "leases" its seed.

"If we can't protect intellectual property, why would we make those investments?" said Evans. "Twenty thousand growers in Canada are watching us, and I want growers to know we are serious about protecting their interests."

When Monsanto detected its gene in the samples taken from Percy Schmeiser's fields, the company threw the book at him. Monsanto launched legal proceedings, accusing him of "stealing" its seeds and infringing its patent. Monsanto demanded compensation to the entire value of Schmeiser's 1998 crop, plus punitive damages, court costs and his signature on a non-disclosure agreement requiring him to stay silent about the affair. Monsanto considered the case criticial if it hoped to protect its patent rights.

But in Percy Schmeiser the company had picked a dangerous man as an enemy. He had been Bruno's mayor for several years, a member of the Saskatchewan provincial parliament and a hardy mountaineer who had made three attempts on Everest.

He was outraged by Monsanto's action and countersued for £4.2 million for trespass, crop contamination and defamation, accusing the company of "arrogant, high-handed and shocking conduct and callous disregard for the environment." He said he had never bought Monsanto's seed and, far from being a criminal who wanted to profit from stolen technology, he said he was a victim of that technology invading his property and crops uninvited.

If Monsanto is judged correct, the story becomes relatively simple: farmer obtains seed illegally and gets caught. Monsanto lawyer Roger Hughes said last week - the first week of proceedings expected to last at least three weeks - that it was impossible for the amount of genetically modified rapesee found in Schmeiser's fields to have been wind-driven.

But if Schmeiser is correct, it is a story with vast implications - biotechnology runs amok, polluting farmers' fields, enslaving producers to corporate seed masters and threatening to pollute the world's biodiversity.

"This was something that was unleashed into the environment and cannot be controlled," argued Schmeiser's lawyer Terry Zakreski. "The widespread use of Monsanto's genetically modified seeds has let a genie out of a bottle." Schmeiser, who has hired an armed guard since counter-suing, said pollen from Monsanto's Roundup Ready canola is all over the place.

"The seed blows in the wind [from other farms] and cross-pollinates. I suspect it blew on to my land from a neighbour who planted Monsanto seeds so close to my fields that there wasn't even a fence line in between. Or maybe from the big clouds of canola seed I've watched blowing off loaded trucks passing my farm at harvest time." While Schmeiser, who has become a cause célèbre in North America with several websites devoted to him, may not himself have wanted a Monsanto crop, some 75 percent of oilseed rape on the prairies is grown from GM seed.

Schmeiser describes Monsanto's product as a "noxious weed" and likes to open a pod of oilseed rape to show reporters the tiny black seeds and explain that just one plant produces as many as 10,000 of them. "It's pretty windy here in the prairies," he said drily. "I think Monsanto is trying to make an example of me because other farmers have found unwanted GM seeds on their land. But I didn't watch my grandparents clear the land and build this farm just to have the profits taken over by a big multinational corporation. A lot of these press people say to me 'If Monsanto can do this to you - contaminate and pollute your land - then farmers might as well quit farming. '"

The Schmeiser-Monsanto court battle has huge implications for farmers everywhere. If Monsanto wins and Westminster eventually approves the commercial growing of GM crops, Roundup Ready canola may reach European shores intentionally. It has already arrived accidentally, shipped by the Canadian company Advanta last month mixed in with a shipment of traditional seeds. Farmers across Europe tore up crops grown from the Advanta seeds, some of the work paid for with government funds.

"Never mind Microsoft," said one of Schmeiser's supporters, U.S. farmer Vincent Moye. "Monsanto is the bigger and more dangerous monopoly. We're all gonna be serfs on our own land."

As for Schmeiser, he said, "I find it all very stressful. I'd rather be fishing."


"Monsanto Used Private Eye, Spies to Check on Saskatchewan Farmers"

SASKATOON - A Federal Court civil trial was told Wednesday that Monsanto used private investigators to check on farmers it suspected were using its herbicide-resistant seed without permission and that one of those investigators testified he took plant samples from public ditches adjacent to privately owned Saskatchewan canola fields.

The story says that the chemical giant, based in St. Louis, Mo., also convinced a Saskatchewan company that sold Monsanto products to supply canola seed samples from farmers being investigated.

Testimony indicated both investigation methods were used to check on Percy Schmeiser's canola crops in 1997 and 1998.

Garry Pappenfoot, a former manager of Humboldt Flour Mills, was cited as saying he gave a sample of Schmeiser's seed to a Monsanto representative in April 1998. Pappenfoot said he did not seek Schmeiser's permission to give the sample to Monsanto and didn't inform him of the fact.

Craig Evans, general manager for biotechnology for Monsanto Canada Inc. of Winnipeg, was cited as saying the company would rather not take samples from third parties to ensure the genetically modified seed is being used properly, but Schmeiser had refused to co-operate with the company, adding, "We don't want to be going and taking samples. If we have a suspicion, we want to work with growers and resolve the matter."

The company employed private investigators to pick canola samples just outside of Schmeiser's fields in 1997 and later employed a land surveyor to ensure the samples came from public land.

Investigator Wayne Derbyshire of Regina admitted he was not entirely confident he had taken samples from public land next to one of Schmeiser's fields, but was encouraged but the results of the land survey, adding, "Once I saw the survey stakes and where they were, I was confident I had never entered Mr. Schmeiser's land."

Rob Chomyn, a Monsanto employee, testified someone informed on Schmeiser on a company toll-free help-line.


"Farmer's Reapings No Fluke, Court Told: Schmeiser Planted Roundup Ready Canola Knowingly"

Roger Hughes, a partner in a Toronto law firm which specializes in intellectual property issues and representing Monsanto, was cited as saying at the opening of a civil trial that Percy Schmeiser deliberately segregated seed" that he knew was Roundup Ready from his 1997 canola crop and then proceeded to plant 900 acres of commercial grade canola the next year, and that evidence will show Schmeiser did this without Monsanto's permission, violating its patent on the Roundup Ready gene.

He added that expert testimony and published literature will show the Roundup Ready canola did not get into Schmeiser's field through cross pollination, nor did it fall off a truck and grow on the public right of ways next to the defendant's fields, adding, "Forces of nature such as wind and bees are clearly insufficient to produce a 90 per cent crop of Roundup Ready canola." The story says that Hughes led a contingent of three lawyers on the opening day of what could be a three-week civil trial in Saskatoon before Mr. Justice Andrew MacKay of the Federal Court of Canada.

Saskatoon lawyer Terry Zakreski, representing Schmeiser, was cited as delivering a portion of his opening argument, which he will finish later in the trial, stating that the patent Monsanto is claiming Schmeiser infringed is a patent on a gene and not on a canola plant, adding, "Our position is this gene is like a genie out of the bottle that has spread to the environment."

Zakreski said the sampling and testing of canola taken from Schmeiser's fields produced a "mess of different results." He also complained that it was Monsanto employees who sampled, tested and stored the canola seeds. However, the Monsanto lawyer told court later he will present testimony from an independent third party that also tested the canola samples.

Zakreski said his client is "not a herbicide tolerant canola grower. Monsanto is seeking to recover $34,000 or $15 for each of the 900 acres of canola that Schmeiser grew in 1998, plus the estimated profits of $34,000 that Monsanto suggests Schmeiser made that year. The $15 fee is standard under the technology-use agreement signed by farmers who agree to pay Monsanto to use the gene technology in Roundup Ready seed varieties.

Monsanto executive Gordon Froehlich testified that this spring some 20,000 Prairie farmers will plant 4.5 to five million acres of Roundup Ready canola, which is as much as 40 per cent of all canola planted this year. Froehlich, the general manager of Monsanto's Canadian seed business and a partner in a family farm in Yorkton, said the main stipulation the growers must agree to is that they deliver all of their crop to an elevator or crushing plant and retain none of it for their own use or make it available to others.

Court also heard from senior Monsanto scientist Robert Horsch of Madison, Wis. who was part of the team that identified a gene from the common petunia plant and came up with the method to transfer the technology to canola. The patent on the Roundup Ready gene runs out in 2010. The patent on the herbicide Roundup has actually run out and other companies are now attempting to become certified to produce their own versions of a glyphosate product, Monsanto officials said outside court.

Under cross-examination, Horsch agreed a dominant gene, such as the Roundup resistant gene transferred to canola plants, would be present in any pollen from that plant and could be incorporated by nontransgenic plants.

Video testimony from three Monsanto lab employees in St. Louis, Mo. was played and detailed how the samples from Monsanto's private investigator in Saskatchewan, Mike Robinson of Robinson Investigations, arrived in their lab in September 1998. Testing showed the samples all matched the DNA profile of a particular variety of Roundup Ready canola. The lab grew out samples from the seed pods of each of the 17 samples taken from Schmeiser's fields. They also tested leaf samples taken directly from the plants in Schmeiser's field.

Some of the lab documentation has been sealed by the court under a confidentiality agreement obtained by Monsanto to protect the proprietary DNA sequencing information.