May 21, 2004
-- CropChoice news -- CBC news: It was billed
by some as a classic David-and-Goliath confrontation
between a Saskatchewan family farmer and biotech giant
Monsanto Canada - a case of the rights of the small
farmer to continue a traditional way of farming. Others
saw it as theft - a blatant attempt to take advantage
of years of research and development of a better product,
without paying for it.
For seven years, Percy Schmeiser has argued that seeds
from Monsanto's patented genetically-modified canola
landed on his 1,400 acre farm near Bruno, east of Saskatoon,
by accident. Monsanto has altered the plant's genes
to make the canola resistant to Roundup, a Monsanto
weed killer. Monsanto patented the gene and the process
of inserting it into the seed.
Farmers usually use seeds from one year's crop to plant
the next year's crop. But when they buy Roundup Ready
canola from Monsanto, they have to agree to buy new
seed every year. Monsanto says that's the only way they
can recoup the money they've spent designing a better
plant - the only way they can fund future research that
will allow farmers to improve their crop yield.
Schmeiser argued that a company can't patent a plant
- and he relied heavily on a previous case involving
the question of whether higher life forms can be patented.
In the "Harvard Mouse" case, Canada's top
court reinforced efforts to keep higher forms of life
unpatented when it ruled that Harvard did not have a
patent on its famous "OncoMouse," designed
to quickly develop cancer. It took Harvard 17 years
to develop the mouse. Canada stood alone on this issue,
after the United States and Europe granted Harvard a
Lower courts rejected Schmeiser's claim that the canola
landed on his fields by accident, but didn't deal with
the deeper issue of whether Monsanto can control use
of a plant because it has patented a gene in the plant.
But Canada's highest court sided with Monsanto - in
a five to four ruling. The court did agree with Schmeiser
that the plant is a higher life form and cannot be patented,
but said the patent does apply to the gene.
The ruling forces Schmeiser to turn over any remaining
crops and seeds derived from Monsanto's product. But
the court overturned a lower court ruling that he pay
Monsanto the profits from his 1998 crop.
That 1998 crop began with what Schmeiser says was a
discovery in a ditch by one of his fields a year earlier
- canola plants. He says he did what most farmers do
when he found those plants. He sprayed a herbicide on
the wandering canola, but to his surprise and consternation,
the herbicide did not kill the canola in the ditch.
This is because the canola was designed to resist the
weed killer. Scientifically, the Monsanto canola is
called a "glyphosate-resistant plant."
Five farmers neighboring Schmeiser used Monsanto seeds,
paying the company a licensing fee of $15 an acre.
Schmeiser says he did a field test on three acres of
his canola crop and discovered 60 percent of the canola
plants sprayed with Roundup herbicide survived in clumps,
thickest in the ditch, thinner deeper into his canola
crop. Schmeiser has claimed all along that the Monsanto
canola must have blown onto his field, or fallen from
passing trucks. Monsanto accused Schmeiser of stealing
its seeds and sued him for illegally using its patented,
genetically modified canola.
Many Canadian farmers want the Monsanto seeds, but
while they can buy it for a price, Monsanto keeps the
rights to the DNA itself. That's what makes the seed
special and that's where Monsanto makes its money. Some
30,000 Canadian farmers use the special Monsanto canola
seeds. It's estimated that 40 percent of the canola
grown in Canada is Monsanto's Roundup Ready canola.
As in human beings, the DNA of seed is passed along
from generation to generation. If there were no control
mechanisms in place, a farmer could conceivably buy
Monsanto's special seed once, pass the seeds from year
to year and never have to pay for it again.
So the problem for Monsanto is protecting its investment.
Farmers buying Monsanto's seed must sign a contract
promising to buy fresh seed every year. Then they must
let Monsanto inspect their fields for cheating.
Randy Christenson, Monsanto's regional director in
Western Canada when this story first unfolded in 1999,
said the company has to be tough. "We've put years,
years and years of research and time into developing
this technology," he said. "So for us to be
able to recoup our investment, we have to be able to
be paid for that."
"I've been farming for 50 years, and all of a
sudden I have this," Schmeiser said. "It's
very upsetting and nerve-racking to have a multi-giant
corporation come after you. I don't have the resources
to fight this."
Monsanto first got a tip about Schmeiser on the toll-free
snitch-line it set up for farmers to turn in neighbors
they suspect of growing the seed without paying. Monsanto
hired private investigators from a Saskatoon firm to
check out the tips. Investigators patrolling grid roads
took crop samples from Schmeiser's fields to check for
Monsanto's DNA. Monsanto called its investigations "audits."
"Yes, we do have a group that do audit, they do
make farm visits, but they do it in a way that is extremely
respectful to the farmers," Christenson told CBC
News. "We never, never, go on their property, never,
without their permission."
Documents from earlier court proceedings showed that
Monsanto ordered its investigators to trespass on Schmeiser's
fields and collect samples. Monsanto agents paid a secret
visit to the company that processes Schmeiser's seeds
for planting. Gary Pappenfort, manager of the seed-processing
company, said a representative of Monsanto visited him
and asked if Schmeiser had some seed treated there.
The Monsanto agent asked for a sample of his canola
and Pappenfort gave some to him.
Schmeiser says nature has been moving DNA around for
thousands of years. "It will blow in the wind,"
he said. "You can't control it. You can't put a
fence around it and say that's where it stops. It might
end up 10 miles, 20 miles away." He once told CBC
News Online that seeds can blow onto his farm from as
far away as North Dakota.
Scientists from Agriculture Canada say wind can blow
seeds or pollen between fields, meaning the DNA of crops
in one field often mixes with that in another. Seeds
or pollen can also be blown off uncovered trucks and
farm equipment. But Monsanto seems to be saying it's
up to farmers to dig out any Monsanto crops blowing
into their fields. Several judges have agreed.
In 1998, Edward Zilinski of Micado, Sask., traded seeds
with a farmer from Prince Albert. This is an old farming
tradition. But the seeds he got in return had Monsanto's
DNA. Monsanto told Zilinski that he and his wife owed
the company more than $28,000 in penalties. "Farmers
should have some rights of their own," Zilinski
Monsanto's actions have sparked the anger of many farmers
in Western Canada. The Kram family in Raymore, Sask.,
said planes and a helicopter have buzzed their fields
and agents dropped weed killer on their canola field,
to see if the crops had the Monsanto gene. Monsanto
said it had absolutely nothing to do with it.
"We are honestly disgusted with the way things
are going," Elizabeth Kram said. "Who put
the canola in? It is the farmer. It doesn't belong to
Monsanto or anybody else and I don't see anybody else's
name on the titles of all the land we own. It's my husband
and myself. Nobody else. We're thoroughly pissed off."
In 2002, an Ontario report called for a review of the
Federal Patent Act in order to avoid disputes over intellectual
property that could keep doctors and researchers from
developing treatments and tests.
In February 2003, the Canadian Biotechnology Advisory
Committee - set up by the government to advise it on
a wide range of biotechnology issues - released a series
of recommendations on higher life forms and The Patent
Act. Among them were:
- Higher life forms (i.e., plants, seeds and non-human
animals) that meet the criteria of novelty, non-obviousness
and utility be recognized as patentable.
- That a farmers' privilege provision be included
in the Patent Act. It should specify that farmers
are permitted to save and sow seeds from patented
plants or to reproduce patented animals, as long as
these progeny are not sold as commercial propagating
material or in a manner that undermines the commercial
value to its creator of a genetically engineered animal,
- That the Patent Act include provisions that protect
innocent bystanders from claims of patent infringement
with respect to adventitious spreading of patented
seed, patented genetic material, or the insemination
of an animal by a patented animal.
In the end, Schmeiser called the legal battle a victory,
in part because the court ruled that Schmeiser would
not have to pay Monsanto's legal costs.
"We did not expect this to go all the way to the
Supreme Court of Canada," he said in the wake of
the ruling. "We were fighting for the fundamental
right of the farmer to save his seed and use it year
Monsanto has welcomed the Supreme Court decision.
"The Supreme Court has set a world standard in
intellectual property protection and this ruling maintains
Canada as an attractive investment opportunity,"
the company said in a release on its website. "Patent
protection encourages innovations that will lead to
the next generation of value-added products for Canadian
The Supreme Court decision should clear up some of
the confusion surrounding this issue. But in the end,
the federal government will likely have to clarify the
rules on patenting organisms by bringing The Federal
Patent Act into the 21st Century.