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Schmeiser loss leaves Monsanto empty handed

by Paul Beingessner
Canadian farmer, writer

(Thursday, May 27, 2004 -- CropChoice guest commentary) -- Percy Schmeiser's day in the sun may finally be coming to an end with last week's Supreme Court of Canada decision in his battle with agrochemical giant Monsanto. Percy, no doubt, is glad to see the end of it. Since being accused by Monsanto of planting Roundup Ready canola without paying the tech fee, Schmeiser's quiet life as a farmer has turned into a continual media circus. And, while the decision went against Schmeiser, in that the court allowed Monsanto to control seeds and plants containing its patented gene, Percy must be trying to hide a wry smile at the outcome. He lost the appeal in one sense, but in another, he can claim victory. The Supreme Court threw out the huge award given to Monsanto by the lower court. It left Schmeiser with no further penalty and each side paying its own court costs.

The decision on the legality of Monsanto's patent is a disappointment to farmers fighting for the right to save their own seed, but there are some positive features to the Supreme Court's judgement.

For one, it was extremely close, with four of the nine Supreme Court judges agreeing with Schmeiser, and stating that, in their opinion, Monsanto should pay his legal costs.

The other five judges took Monsanto's position, but ruled that since there was no evidence that Schmeiser had actually sprayed the crop with Roundup, he did not benefit from the technology in the seed. Since he did not benefit, Monsanto was not entitled to the profits he derived from the crop. In a similar case in the U.S., an appeal court struck down a massive award against farmer Homan McFarling for saving seed from Roundup Ready soybeans. McFarling, net worth $78,000, had been ordered to pay Monsanto $780,000. The court ruled that the penalty Monsanto puts in its soybean contracts - 120 times the value of the technology fee - was not a fair way to assess the damage to Monsanto from McFarling's actions.

All nine judges in Schmeiser's case also seemed to agree that the issue of "higher" life forms was not clear enough in the Patent Act and should be clarified by Parliament.

Groups that supported Monsanto were pleased with the decision. The biotech industry was relieved, claiming that a Schmeiser win could have been a deterrent to large companies investing in ag research in Canada.

The latter comment merely echoes Monsanto's position. The truth is though, that large companies like Monsanto do not play a major role in plant breeding in Canada. Canada's major cereal and pulse crops are largely derived from public breeding programs paid for either by taxpayers or by farmers themselves through checkoffs. Only in canola is much private money being put into breeding. And in canola, so it seems, Monsanto has not done anything noteworthy since it put the Roundup Ready gene into a canola plant.

In plain truth, whether or not plants are protected by patents will have little short term effect on plant breeding. Whether or not biotech proponents like to admit it, genetic modification has had little impact in cereal (other than corn) and pulse breeding. We have been promised it will for some time, but we could get old waiting for promises like that. Where, for example, is the fusarium resistant wheat we've been promised would end farmer resistance to GM crops? Nowhere on the horizon, I've been told.

Interestingly, the dissenting opinion of the four judges recognized that companies that put a gene in a plant may benefit far more than they should from the results. To get a Roundup Ready variety of canola or corn or wheat, Monsanto must first take a conventional variety that has all the necessary characteristics needed in that crop. It then adds one additional factor - Roundup resistance, and claims ownership of the whole plant. The dissenting judges quoted the Canadian Biotechnology Advisory Council which noted in 2002 that that much of the value of a higher life form comes from what is inherent in all such life forms. The judges reasoned that a patent on a higher life form might in this way "overcompensate the patentee...in relation to what was invented".

The end of Schmeiser's case is not the end of the GM issue. Organic farmers in Canada have a suit going against Monsanto for failing to control the spread of its Roundup Ready canola. The spread of Roundup Ready genes throughout canola varieties has made it all but impossible to grow organic canola in Canada. Farmers in the U.S. are challenging the validity of Monsanto's patents in their courts. While Percy's battle is over, other farmers fight on.

(c) Paul Beingessner (306) 868-4734 phone 868-2009 fax