!! History Commons Alert, Exciting News
BIOTECanada was a participant or observer in the following events:
Canada’s Supreme Court hears the case of Percy Schmeiser v. Monsanto. Schmeiser is appealing a lower court’s decision that he infringed on Monsanto’s patent when he planted canola seed in 1998 that he “knew, or ought to have known” was from glyphosate-resistant plants. Intervening on Schmeiser’s behalf are a consortium of six non-government organizations (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 the Ontario attorney general. The Ontario government is backing Schmeiser because it fears that a decision upholding the lower court’s ruling would encourage more gene patents and increase healthcare costs. Monsanto’s lawyers also presenting arguments before the court. In addition to defending the lower courts’ ruling that Schmeiser infringed on the company’s patent, the lawyers are cross-appealing the decision that the farmer’s profits in 1998 (awarded to Monsanto) only amounted to $19,832 CAD. Monsanto has calculated Schmeiser’s profit to be $105,000 CAD. Monsanto’s interveners include the Canola Council of Canada, BIOTECanada, and the Canadian Seed Trade Association. [BC Politics, 2/2/2004]
Schmeiser's Arguments -
Schmeiser’s lawyer, Terry Zakreski, challenges the validity of Monsanto’s patent arguing that the patent contradicts the Harvard College v. Canada Supreme Court decision that higher-life forms cannot be patented. He explains that in claiming exclusive rights to glyphosate-resistant plant genes and cells, Monsanto is in effect claiming patentholder rights to any plants and seeds containing those genes and cells, which as the Supreme Court has already decided, is not legal. He argues that Monsanto should have instead chosen to protect its intellectual property rights under the Plant Breeder’s Rights Act, which was designed to protect the rights of seed developers. [Associated Press, 1/20/2004; BC Politics, 2/2/2004]
Zakreski also argues that extending Monsanto’s patentholder rights to second-generation roundup-resistant seeds makes it illegal for farmer’s to save and share seeds—the 12 thousand year old practice responsible for creating domesticated crops. [Vancouver Sun, 1/20/2004]
Even if the patent is ruled valid, according to Zakreski, Monsanto implicitly waived its patentholder rights when it failed to control the spread of its invention after releasing it unconfined into the environment. [BC Politics, 2/2/2004]
Zakreski also argues that even if the court upholds the validity of Monsanto’s patent, Schmeiser did not violate the patent, because he never exploited its utility—the resistance it provides against glyphosate. The only way to use the patent, he says, is to spray Monsanto Roundup Ready Canola with Roundup, which Schmeiser did not do. [BC Politics, 2/2/2004]
Zakreski notes an inherent contradiction in the claim that Monsanto is entitled to all profits resulting from the sale of seed containing the patented gene. Zakreski offers the hypothetical example of a farmer whose canola is infested with two different genes, each patented by a different company. Would each of the patentholders be entitled to the full profit? Would the farmer be required to pay each of them 100 percent, in effect being forced to pay out twice the profit from his crop? [BC Politics, 2/2/2004]
Monsanto's argument -
Monsanto’s lawyers reject Schmeiser’s position that a farmer’s right to save seed overrides the company’s patent rights. In order for them to recover research and development costs they must charge farmers annually for use of the seed containing their patented gene, they argue. [Vancouver Sun, 1/20/2004; Associated Press, 1/20/2004]
The company’s lawyers also insist that the Harvard College v. Canada decision does not apply to this case. Its patent is not on the entire plant, but rather just one of the plant’s ingredients. He compares the company’s gene to a special patented steel that is used for an automobile where the inventor’s rights extend only to the steel, not the entire car. The judges interrupt Monsanto’s presentation on several occasions challenging the lawyer’s steel analogy and asking Monsanto’s lawyers where Monsanto’s patent rights would end since plants have the ability to reproduce themselves and hence the inventions contained within them.
Lawyers for Monsanto’s interveners said that invalidating the company’s patent would harm Canada’s economy and undermine its patent system. “Patents create a climate that favors new research,” argues A. David Morrow, a lawyer for the Canadian Seed Trade Association. [Associated Press, 1/20/2004]
Biotech Canada’s lawyer, Anthony Creber, similarly states, “I’m nervous that if you don’t give (patent protection) for seeds and cells, you will have a hollow Patent Act with severe economic consequences.”
[Star Phoenix (Saskatoon), 1/21/2004]
Mona Brown, a lawyer with the Canadian Canola Growers Association, tells the judges that the “patent makes us more profitable and better farmers.”
[Associated Press, 1/20/2004]
Entity Tags: International Center for Technology Assessment, Research Foundation for Science, Technology and Ecology, National Farmers Union, Canola Council of Canada, BIOTECanada, Canadian Seed Trade Association, Action Group on Erosion, Technology, and Concentration, Sierra Club, Monsanto, Percy Schmeiser, Council of Canadians
Timeline Tags: Seeds
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