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Farmers' rights and other points for Canadian judges to consider

By Robert Schubert
CropChoice editor

(May 21, 2002 – CropChoice news) – Saskatchewan farmer Percy Schmeiser is encouraged by a line of questioning last week in the case of his appeal of a decision favoring Monsanto last year.

The Canadian Federal Court of Appeal listened to his attorney, Terry Zakreski, and counsel to Monsanto during two days of hearings. The Court could take as little as a week or as long as a year to render its judgement.

Last year, federal court judge Andrew McKay ruled that Schmeiser, a Saskatchewan farmer, had infringed the patent on Monsanto’s genetically modified Roundup Ready canola – so named for its resistance to the herbicide Round Up (glyphosate) – because it was on his farm, which he "knew or ought to have known." The implication – and one of the original allegations that Monsanto withdrew before trial – was that Schmeiser had obtained the seed illegally.

This issue, and its bearing on farmers’ rights, surfaced during the appellate court proceedings last week. Near the end of the hearing, Schmeiser recalls that one of the three judges turned to Monsanto’s lawyer and asked whether the company would consider farmers who were unaware of its genetically modified varieties growing in their fields to be infringing its patent(s). The immediate response was that, yes, it would regard them as patent infringers, but that it would be reasonable with such farmers. It would work with them to find a remedy.

Terry Zakreski recalls that he responded by questioning the wisdom of granting such power to Monsanto in the first place and trusting that the company wouldn’t abuse it.

"In such a scenario, Monsanto has all the power and the remedy," he says. "The [unknowing] patent infringers have no power. They’re relying on Monsanto to be reasonable."

In television news interviews last week, he says, Monsanto spokeswoman Trish Jordan urged farmers who find themselves in such a situation to contact the company about sending its agents to remove the patented plants. However, no one has provided an answer as to how they would do that in cases where Roundup Ready canola is growing among a standing crop of conventional or organic canola. Monsanto might have to use Roundup to destroy all but the resistant plants so that it could remove them. Obviously, that would leave the farmer with a dead field and bills to pay.

"Overall,we’re in the wait and see mode," Zakreski says. "It’s up to the court. We think that we made the judges think about some important points."

Those include:

  • farmers’ rights to save and re-use seed,
  • the idea that one must spray Roundup on a Roundup Ready crop to take advantage of the patented technology (which Schmeiser never did),
  • and the fact that he received no material benefit from the presence of Roundup Ready canola in his fields.