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Canola case tests GMO patent

(Thursday, Dec. 4, 2003 -- CropChoice news) -- Kristen Philipkoski, Wired, 12/02/03:

The future of genetically modified crops in North America is in the hands of a 73-year-old Canadian canola farmer named Percy Schmeiser.

Schmeiser already has lost two court cases dealing with his use of seed designed by Monsanto, but he and his supporters have made it to the Supreme Court of Canada with a new argument: Monsanto's patent is invalid.

The case, to be heard in January, will be binding only in Canada. But the outcome will have an unofficial ripple effect throughout the United States and the rest of the continent, where Monsanto has sued more than 500 farmers for infringing on its genetically modified seed patents.

In addition to Monsanto, companies including Dow, DuPont and Bayer sell their versions of genetically modified soy, corn and canola seeds to farmers in North America.

"Monsanto does not have a patent for the canola seed," said Nadege Adam, a campaigner for the Council of Canadians, a group with intervener status in the Schmeiser case. "It was given a patent for a gene trait.... In Canada, no one has ever been given a patent for either a plant or a seed, only genes."

Recently, efforts to keep life forms unpatented in Canada were reinforced when the Supreme Court ruled against Harvard College, saying it did not have patent rights for its OncoMouse. Harvard scientists worked 17 years to develop the mouse that quickly develops cancer, but the court said it does not count as an invention.

"Higher life forms," including plants, cannot be patented unless Parliament mandates it, the court said, based on what it called the widely accepted difference between higher and lower life forms.

"Patentable microorganisms are formed in such large numbers that any measurable quantity will possess uniform properties and characteristics," the decision said. "The same cannot be said for plants and animals."

The OncoMouse case was a blow to the Canadian biotech industry and set the country apart from the United States and Europe, which granted patents on the rodent. Schmeiser's supporters plan to use the case as a precedent. A decision in Schmeiser's favor could call into question the validity of all gene patenting in Canada.

"They have a patent on a gene, but the end result is no different from a patent on a plant, (which would be) invalid because it operates as a patent on a higher life form," said Terry Zakreski, Schmeiser's attorney.

Others wonder where the line could be drawn between a patent on a gene and a patent on a seed or plant. A Monsanto spokeswoman said she's confident that the Supreme Court will find the canola patent valid in Canada.

"The (lower) courts found the patent was valid, and that is important not only to Monsanto, but companies like us who continue to invest in Canada, knowing our rights will be respected," said Trish Jordan, a spokeswoman for Monsanto's Canadian operations.

The lower court cases operated under the assumption that Monsanto's patent is valid. Their decisions state that Schmeiser "knew or should have known" he was using Monsanto's patented seeds without a license. The Supreme Court case will focus specifically on whether the patent should be upheld.

A neighboring farmer in 1997 told Monsanto that Schmeiser was growing Roundup Ready seeds, Jordan said. Roundup Ready seeds grow plants that are resistant to a Monsanto herbicide called Roundup, which kills everything else in its path.

Several other farmers have settled out of court with Monsanto, but the settlement amounts are confidential and the farmers involved are barred from discussing details. Schmeiser is the first to take on Monsanto in court.

Despite facing fines of about $1.2 million, which Schmeiser said would bankrupt him and his wife and cause them to lose their home and farm, he said he doesn't regret confronting Monsanto.

"Yes, it has been stressful, but we just made up our minds that we're not going to give up," he said.

Unlike most other canola farmers, Schmeiser grew canola every year instead of rotating in another crop like wheat. He had developed his seed over four decades to grow well year after year on the same land. He was also a "seed saver," which means he keeps seeds from each crop to plant the next.

"I was a seed developer; I didn't want anything to do with GMOs," Schmeiser said.

But in 1997 when he saved his seeds, they were mixed with Roundup Ready seeds, which Schmeiser admits he suspected. (He tested by spraying Roundup on a small area of crop in a ditch adjacent to his land, and some of the plants lived.) That's why the lower courts ruled against him.

Roundup Ready is the most popular seed Monsanto sells in Canada -- more than 30,000 Canadian farmers use it -- probably because canola is still fairly wild. It was domesticated more recently than other crops like soy and wheat, making it unpredictable and more difficult to grow.

But Roundup Ready seeds are expensive: $15 per acre, compared with zero when farmers save their seeds. Monsanto requires customers to sign a contract stating they will not save seeds, which some farmers, including Schmeiser, say is against Canadian law.

The company says farmers can recoup the cost with better-quality crops. But farmers who don't want to spend the extra money, or who would rather retain organic status (genetically modified crops are barred from organic labeling), eschew the Roundup Ready seeds.

It's impossible to completely contain seeds, said E. Ann Clark, a professor of plant agriculture at the University of Guelph in Ontario. Seeds can be carried by wind, spilled from delivery trucks or transported in bird droppings, making contamination inevitable.

Monsanto will remove any unwanted Roundup Ready canola, or any other genetically modified crop, from farmers' crops for free. But Clark and others argue that by the time a genetically modified seed gets into a crop, it's too late. It's impossible to test the DNA of every plant in a crop, and they all look exactly alike. Another option is to spray Roundup, but that would kill the crop grown from the farmer's own seed. If Monsanto then removed plants grown with its patented gene, the farmer would be left with an empty field.

Schmeiser and his supporters say this is one reason why they don't believe Monsanto's patent should extend to the plant.

"Now I can't even grow canola because it's all contaminated, along with dozens of other farmers," Schmeiser said. "They say that I ought to or should have known (I had their seed). They ought to or should have known that it would contaminate. They knew it would and now it's out of control."

Source: http://www.wired.com/news/medtech/0,1286,61241,00.html?tw=wn_tophead_2