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Schmeiser wants to take it to the Supreme Court

by Robert Schubert
CropChoice editor

(Monday, Sept. 9, 2002-- CropChoice news) -- Having lost before the Canadian Federal Court of Appeal last week, Saskatchewan farmer Percy Schmeiser will seek to take his case to the next and highest level -- the Supreme Court.

The three-judge panel unanimously decided in favor of Monsanto Canada, Inc. by dismissing all of the 17 points that counsel to Schmeiser had used in contending that a May 2001 lower court decision should be set aside. The judge in that case ruled that Schmeiser had infringed the patent on the canola Monsanto genetically engineered to resist glyphosate, the active ingredient in its Roundup herbicide.

Important in the appellate judges' ruling were the following, says Schmeiser lawyer Terry Zakreski:

  • The mere presence of the patented plants constitutes infringement;
  • a farmer who knows or ought to know that the Roundup-resistant variety is on their land and who saves and re-uses seed from it will be considered a patent infringer; and
  • even if the farmer makes no money from the existence of the Roundup Ready canola on their land, the patent is still infringed.

"This [ruling] completely takes away farmers' rights because the judges are interpreting the law to mean that patents are over and above farmers' rights," Schmeiser says. "At the end of the day, it means that farmers lose their right to save seed."

Within the next two months, Zakreski will seek leave to appeal to the Supreme Court, which he hopes will agree to hear the case, given what many view as its national importance.

In that event, the counselor would argue, contrary to both the original and the appellate decisions, that how the patented seed arrives on a farmer's land is important and that the patent is not infringed if a farmer doesn't spray Roundup and therefore derives no benefit from the presence of the resistant plants. (Percy did not spray Roundup, which the appellate judges acknowledged.)

Monsanto claims that it is not persecuting farmers, only that it's trying to enforce its patent and ensure fairness to the farmers who've paid for the Roundup Ready technology and agreed not save seed resulting from it.

"It is not, nor has it ever been Monsanto Canada's policy to enforce its patent on Roundup Ready crops when they are present on a farmer's field by accident," says Trish Jordan, director of public and industry affairs for Monsanto Canada. "Only when there has been a knowing and deliberate violation of its patent rights will Monsanto act."

Schmeiser acknowledges that the Supreme Court, if it agrees to hear the case, is his last shot.

"If I lose at the Supreme Court, then I've lost the battle for farmers all over the world, and for their right to use their own seed," he says. It would mean "total control of the seed supply by multinationals like Monsanto, which has found a way to do it, and that's through patent law."

Background and related stories: