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Observations on the Supreme Court hearing of Percy Schmeiser

by E. Ann Clark, Ph.D.
Department of Plant Agriculture
University of Guelph (eaclark@uoguelph.ca)

(Monday, Feb. 2, 2004 -- CropChoice guest commentary) -- I am not easy to impress, but young Terry Zakreski, the lawyer representing Saskatchewan farmer Percy Schmeiser, made an argument before the Supreme Court of Canada [Jan. 20, 2004] that was nothing short of brilliant. Not only was it original, with razor-sharp logic, but the delivery was calm, focused, deliberate, and articulate.

Picture the scene. The nine Supreme Court judges, resplendent in their red robes, file in and take their places at the far end of the room. The tall, slender, pale lawyer from Saskatoon sits alone on the Appellant’s (Schmeiser) side of the aisle, flanked by three lawyers for the Respondent (Monsanto) across the aisle. Behind Zakreski are 2 pairs of lawyers and a whole lot of vacant seats. The pairs represent two sets of Interveners supporting Schmeiser’s position: first, a consortium of 6 NGOs (Council of Canadians, Action Group on Erosion, Technology, and Concentration, Sierra Club, National Farmers Union, Research Foundation for Science, Technology and Ecology, and the International Center for Technology Assessment), and second, the Attorney General for Ontario. Stacked up behind the Monsanto contingent are a bevy of two or three lawyers for each of the other Interveners granted permission to speak in support of Monsanto’s position - the Canola Council of Canada, BIOTECanada, and the Canadian Seed Trade Association. The audience at the back of the courtroom is limited to 50 hardy souls, most of whom have braved hours of truly bone-chilling conditions on the steps of the Supreme Court to ensure a place at the proceedings.

Conduct is formalized, with the Appellant and Respondent each accorded one hour to make their case, while the five Interveners are given from 7.5 to 15 minutes each. The Judges are free to interrupt at any time to challenge the lawyers. The Appellant has 5 minutes to rebut. It is all over by 1PM, when the judges retire to deliberate.

When he rises to face the Supreme Court of Canada, Zakreski presents a three-fold argument.

1. The actual wording of Monsanto’s Patent ‘830, entitled “Glyphosate-Resistant Plants” consists of 52 claims encompassing various aspects of the RR gene itself and the RR cells that result from inserting the gene. But most critically, Monsanto’s patent makes no reference to seeds, plants, or crops. Thus, although its actual patent ends at the cell, Monsanto has chosen to commercialize its patent rights at the level of seeds, plants, and indeed, whole crop fields. Paraphrasing from Zakreski’s argument, while Monsanto says that they don’t own Canada, they nonetheless claim every province and territory in Canada.

This is a critical distinction, because a seed or a plant is a higher life form, and in its ground-breaking Harvard Mouse (“oncomouse”) Decision last year, this very same Court had ruled that higher life forms could not be patented in Canada. Zakreski cited other evidence showing that the Patent Act was never intended to apply to seeds or plants, which instead are covered under the Plant Breeder’s Rights Act.

Thus, in order to support Monsanto’s patent infringement claim against Schmeiser, the Court would necessarily have to conclude that seeds and plants - higher life forms - are subject to the Patent Act, directly contravening both their own decision on the Harvard oncomouse case and the wording of the Patent Act itself. A finding against Monsanto’s claim would not deny Monsanto, or indeed, the biotech industry, their lawful patent rights. But it would affirm that patent rights are as actually worded in the patent - no more, and no less.

Either way, the ruling of the Supreme Court will not affect the provisions of the Plant Breeders Rights Act, which has been and will continue to be the dominant vehicle for protecting the intellectual property rights of innovative plant breeders in Canada. Paraphrasing again from Zakreski’s closing statement, it is not Schmeiser’s fault that Monsanto chose to protect its intellectual property inappropriately, under the Patent Act, instead of using the Plant Breeders Rights Act as it was intended.

2. The Patent Act gives rights over the “making, constructing, and using” of an “invention and selling it to others to be used”. Infringement occurs when someone makes, constructs, or uses a patented invention for sale, without the permission of the patent owner.

Yet, Schmeiser never made, constructed, used, or sold the RR gene. He grew a 1030 ac canola crop in 1998, of which some of the plants inadvertently contained the RR gene. This is the crop for which he was charged with patent infringement.

In order to use the patented RR gene, Schmeiser would have to have sprayed Roundup on his 1030 ac crop - which he did not do. The RR gene confers only one trait - tolerance to Roundup - a trait of relevance only when the herbicide Roundup is actually sprayed. Quoting from an earlier court decision, “The uncontradicted evidence of Mr. Schmeiser is that he did not spray Roundup on his 1998 canola crop” (Para. 29, Court of Appeal). Not only did Schmeiser make this statement, but he also presented to the lower court receipts showing that he had purchased his normal complement of herbicides in 1998. Monsanto presented no evidence that he had purchased or applied Roundup to the 1998 crop.

Zakreski argued that simply growing RR-contaminated plants for sale as grain - as done by Schmeiser - did not engage the utility of Patent ‘830", because “the gene neither caused Mr. Schmeiser’s plants to grow, nor to grow differently or better. The gene added no value at time of sale.” Indeed, as shown by recent market trends, the presence of GM traits actually reduces the value of Canadian canola. Zakreski also noted that the rights granted by Parliament under the Patent Act do not pertain to the simple presence or handling of an invention, but rather, to the exploitation or utility of the invention. Thus, because Schmeiser did not use the patented gene, he did not infringe on Monsanto’s patent.

3. The uncontainability of GM traits, as acknowledged by Monsanto experts in lower court proceedings, ensured off-site contamination of fields not under contract to Monsanto. Aaron Mitchell, the Biotechnology manager for Monsanto Canada, stated that “Monsanto always expected that fields of its genetically modified canola would cross-pollinate with fields of regular canola” (AR Vol. IV, p.600 (20-30)). Zakreski presented numerous examples to substantiate Monsanto’s expectation of uncontrollable contamination from its RR canola.

In this particular case, a local RR-canola grower testified in lower court that while hauling his grain to market past Schmeiser’s fields in 1997, a tarp came loose and “acted like a cyclone” releasing considerable seed into Schmeiser’s adjoining fields (AR Vol. VI. pp. 1132-5). Wind-blown swaths from adjoining RR-canola fields landing on Schmeiser land were also acknowledged by the lower court judge. Because Schmeiser saves his own seed for replanting, the contamination carried into his next year’s crop - for which patent infringement was alleged. Thus, the initial sources of contamination were an inadvertent but nonetheless unavoidable result of normal farm practice.

The degree of contamination in the 1998 crop is in dispute, with Monsanto’s figures showing 95-98%, with a value for each of 27 in-field samples. Yet, the same samples, analyzed at the University of Manitoba, showed 0-68% contamination, with some samples sufficiently degraded as to be unmeasurable.

If the simple presence of RR plants in a field is enough to constitute patent infringement, then most Western Canadian farmers would be patent infringers - albeit innocent bystanders or passive recipients of unwanted and unwelcome RR genes. Accordingly, Zakreski argued that to sustain rights over their own property, farmers should be granted a waiver or implied license to allow them to save and re-use their own seed - a lawful and traditional use of agricultural property on the Schmeiser farm - regardless of contamination which they could not control anyway.

He further argued that it was wrong to award the full value of Schmeiser’s crop to Monsanto simply because the gene was found on his farm, given that he had not benefitted in any way from the contamination, and indeed, could not have prevented it.

To illustrate the unworkability of awarding the full value of the crop to the owner of a patented, contaminating gene, Zakreski presented the hypothetical but entirely plausible example of a farmer whose canola was inadvertently contaminated by two different genes, perhaps from two different neighbors. Would the owner of each patented gene be entitled to the full value of the crop? In other words, would the farmer have to pay each patent owner 100% of the value of his crop?

When Zakreski resumed his seat, the atmosphere of the silent, dignified chambers was positively electric. May his arguments be as powerful and compelling to the judges of the Supreme Court of Canada as they were to me.