Monsanto suit more about patents than GM canola

The decision is in, but in the Monsanto versus Percy Schmeiser case, the more troubling concerns surrounding genetically modified crops were not dealt with, says a University of Saskatchewan law professor.

“It’s a pretty run-of-the-mill patent law claim,” said Martin Phillipson, who specializes in intellectual property law.

“This suit doesn’t raise a lot of the interesting questions. I don’t think it’s a landmark case at all.”

He said the issue of GM contamination of non-GM crops is important, but it didn’t have an impact in this case because the judge ruled there were more than a few stray plants in Schmeiser’s field and in patent law, a plaintiff has only to prove the person being sued knew or ought to have known that he was using a patented invention without permission.

Phillipson said only if Schmeiser goes ahead with a threatened countersuit against Monsanto or if another farmer, such as an organic grower, takes on the company, will those issues be fought.

He said the suit did prove that patent laws are powerful and can be applied to crop varieties.

“It’s such a big stick once you’ve got a patent.”

The ruling against Schmeiser, handed down by Federal Court of Canada judge Andrew MacKay on March 29, declared that Schmeiser was guilty of patent infringement because he knew there was Roundup Ready canola growing on his land, did not get rid of it and used the glyphosate-tolerant plants to seed his next year’s crop.

Improbable cause

The judgment does not declare where the seed came from, but dismisses Schmeiser’s suggestions that wind, bees, birds, passing trucks and other natural means could have done it.

MacKay also accepted the results of a battery of tests that showed Schmeiser’s canola was as pure as commercial Roundup Ready canola. The only tests that didn’t back up Monsanto’s claims were ones done by Schmeiser in his garden, which MacKay disregarded.

Phillipson said that killed Schmeiser’s defence, and also might have nailed shut the coffin lid on any possible appeal.

“Once he made that finding of fact, there was no way Percy was going to win,” Phillipson said.

In a trial, a judge’s chief responsibility is to determine the facts and then make a ruling on how the laws apply to those facts.

Facts are facts

An appeal court generally considers only the trial judge’s legal reasoning and is unlikely to challenge facts once they are established by a trial judge.

With Schmeiser found to have knowingly grown commercial-quality Roundup Ready canola without permission, and with patent laws clearly defining this type of behavior as patent infringement, any appeal will face near-insurmountable difficulties, Phillipson said.

“I don’t see how they can win.This appears to be cast iron tight.”

Phillipson said the case did not address possible problems created by GM crops such as GM contamination of non-GM fields.

Schmeiser complained that Monsanto’s GM canola spread into his homemade canola variety, polluting it with a biotech gene he didn’t want and destroying the integrity of his crop.

Some organic farmers have also said they are worried that small amounts of GM pollen or stray seeds will end up in their fields.

That could rob crops of their organic status and cause major losses to the producer.

A countersuit by Schmeiser, which he has not yet decided if he will pursue, or a suit from another farmer claiming he has been hurt by a biotech crop, would not be a patent case. It would not take place in the specialized Federal Court.

The company that produced the variety would then have to defend itself and prove that its crops are not causing damage to farmers.

“We need to have a debate about this, but I don’t think Monsanto versus Percy Schmeiser is it,” Phillipson said. “Schmeiser versus Monsanto could be.”

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