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Court decisions

Project: Genetic Engineering and the Privatization of Seeds
Open-Content project managed by Derek, mtuck

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In a split 5 to 4 decision, the Supreme Court of Canada rules that Percy Schmeiser violated Monsanto’s patent when he grew canola in 1998 that contained the company’s patented Roundup Ready gene. [Washington Post, 5/22/2004; Vancouver Sun, 5/22/2004; New York Times, 5/22/2004]
Decision - Schmeiser’s lawyer, Terry Zakreski, argued that the protection of Monsanto’s patented genes and cells necessarily extended to restricting the use of any plants and seeds containing them. Since this in effect means that Monsanto is claiming patentholder’s rights for the whole plant, the court must rule, in light of its 2002 Harvard College v. Canada decision that higher-life forms cannot be patented, that the company’s patent must be invalid. However, the majority rejects Zakreski’s argument and affirms the validity of Monsanto’s patent. The majority says the “Harvard Mouse” case does not support Schmeiser’s argument because, while Harvard had sought to patent an actual mouse, Monsanto’s patent is limited to certain genes and cells. Furthermore, Harvard did acquire patents on certain parts of the mouse, a plasmid and a somatic cell culture, and therefore the “Harvard Mouse” case supports Monsanto case, not Schmeiser’s. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 8] The majority also rejects Schmeiser’s defense that he did not use Monsanto’s patented genes. While sidestepping the issue of whether or not it would be necessary to spray Roundup on the plants in order to exploit Monsanto’s patented genes and cells, the majority says that his 1998 canola crop provided him with “stand-by” utility, which a previous court decision determined constituted “use.” In possessing and growing the crop, the majority argues, Schmeiser had reserved the option to spray it with Roundup, should the need arise, or sell it to make a profit. The majority thus holds that Schmeiser infringed on the patent. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 11-13] It is important to note that the majority says this decision does not concern “the innocent discovery by farmers of ‘blow-by’ patented plants on their land or in their cultivated fields.” The majority makes it clear that they do not accept Schmeiser’s claim that his property was “contaminated” with Monsanto’s genes. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 5] For them it is accepted fact that (1) “tests revealed that 95 to 98 percent of his 1,0[3]0 acres of canola crop [in 1998] was made up of Roundup Ready plants” [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 6] ; (2) “he sprayed Roundup to isolate the Roundup Ready plants he found on his land” [emphasis added]; (3) he “segregated the seeds”; and (4) “he ended up with 1030 acres of Roundup Ready Canola.” All of these statements are made as matters of accepted fact even though they were, in fact, all disputed by Schmeiser (see January 20, 2004). [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 15] The court does however side with Schmeiser on the issue of compensation owed to Monsanto. “[Schmeiser’s and Schmeiser Enterprises’] profits were precisely what they would have been had they planted and harvested ordinary canola. They sold the Roundup Ready Canola they grew in 1998 for feed, and thus obtained no premium for the fact that it was Roundup Ready Canola. Nor did they gain any agricultural advantage from the herbicide resistant nature of the canola, since no finding was made that they sprayed with Roundup herbicide to reduce weeds. The appellants’ profits arose solely from qualities of their crop that cannot be attributed to the invention.” [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 17]
Dissenting Opinion - The minority opinion disagrees that any of Monsanto’s rights as a patentholder extend to plants, seeds, and crops. It accepts that Monsanto’s patent claims for the genes and cells are valid, but says that none of the protections afforded by the patent extend “to the plant itself, a higher life form incapable of patent protection.” According to the minority, “In order to avoid the claim extending to the whole plant, the plant cell claim cannot extend past the point where the genetically modified cell begins to multiply and differentiate into plant tissues, at which point the claim would be for every cell in the plant, i.e., for the plant itself.” Consequently, only the original genes and cells produced by Monsanto in the lab and contained within the original seed are protected by the patent—the resulting plant, its seeds, and the plants that grow from those seeds, are not. “Therefore saving, planting, or selling seed from glyphosate-resistant plants does not constitute an infringing use,” the minority concludes. [Percy Schmeiser v. Monsanto Canada Inc., 5/21/2004, pp. 22]

Entity Tags: Monsanto, Percy Schmeiser

Category Tags: Monsanto v. Schmeiser, Court decisions, Farmers' rights

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Federal Judge J. Michael Seabright rules that the US Department of Agriculture violated both the Endangered Species Act and the National Environmental Policy Act when it allowed the cultivation of drug-producing GM crops in Hawaii. The court says the USDA acted in “utter disregard” of the two laws because it failed even to conduct preliminary investigations before granting approval for the growing of these crops. The Hawaii islands are home to 329 endangered and threatened species. Seabright’s ruling is the first court decision regarding plants that have been genetically modified to produce pharmaceutical drugs or industrial compounds. The case primarily concerned four permits that had been issued to Monsanto, ProdiGene, Garst Seed Company, and the Hawaii Agriculture Research Center allowing them to grow drug-producing corn and sugarcane at various locations in Kauai, Oahu, Molokai, and Maui between 2001 and 2003. The plaintiffs in the case—Center for Food Safety, Friends of the Earth, Pesticide Action Network North America, and KAHEA (the Hawaiian-Environmental Alliance)—also challenged the USDA’s practice of refusing to disclose the locations where experimental chemical-producing GM plants are being grown and what substances those plants are being developed to produce. [Center for Food Safety, et al. v. Mike Johanns, et al., 8/10/2006 pdf file; Center for Food Safety, 8/14/2006]

Entity Tags: Hawaiian-Environmental Alliance, Center for Food Safety, Hawaii Agriculture Research Center, US Department of Agriculture, Monsanto, Pesticide Action Network North America, J. Michael Seabright, ProdiGene, Garst Seed Company

Category Tags: Experimental GM Crops, Court decisions, Environment

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