Monsanto vs. Schmeiser enters phase two

The lawyer for Bruno, Sask., farmer Percy Schmeiser says the judge who

determined Schmeiser was guilty of violating Monsanto’s Roundup Ready

patent made 17 fundamental errors in his decision.

Terry Zakreski outlined those errors in front of three Federal Court of

Appeal justices last week. But his case boiled down to two key points –

the fact that Schmeiser never sprayed his 1998 canola crop with Roundup

and the claim that Monsanto violated Schmeiser’s property rights by

seizing the farmer’s seed.

Schmeiser was found guilty of growing Roundup Ready canola without a

licence by a Federal Court of Canada judge during a widely publicized

trial last year. A few months after justice Andrew MacKay’s March 29,

2001, decision Schmeiser filed an appeal. That appeal was heard last

week in a Saskatoon courtroom.

Zakreski told the appeal court that three key facts came out in the

original trial. The trial judge said there was no evidence that

Schmeiser had purchased any brown bag seed or that he had segregated

any of the Roundup Ready canola found in his fields. But the

“coup-de-grace” was that the trial judge determined the farmer did not

spray his 1998 canola crop with Roundup.

MacKay ruled that growing the Roundup Ready canola, harvesting it and

selling it to a crushing plant constituted using the invention without

permission. But Zakreski argued that Schmeiser would have to spray the

crop with Roundup to use the invention.

“(MacKay) misconstrued the patent by saying that we don’t need to

spray.”

In his response, Monsanto’s lead lawyer Roger Hughes said the trial

judge made no errors. He said Schmeiser grew the genetically modified

crop and sold it.

“That’s use. Even the Oxford Dictionary agrees with me on that,” said

Hughes.

He said there is nothing in Monsanto’s patent claims that says a farmer

must spray Roundup to infringe the patent and cited previous decisions

that came to a similar conclusion. He also came up with an example of

his own.

“If I have a bulletproof vest, do I first have to take a bullet to

infringe it?”

The other main point raised by Zakreski during the appeal was that if

genetically modified canola pollen drifts onto a farmer’s land, it

should become the property of the farmer.

“The judge says it doesn’t matter how it gets on your land and we say

it does. That is crucial,” said Zakreski.

He called what happened in the Schmeiser case “conscripted patent

infringement” and said it was an “unfair burden” for a farmer to have

to prove where his crop came from.

Later in the appeal he argued that Schmeiser’s right not to be

subjected to unreasonable search and seizure was violated when

Monsanto’s private investigators obtained some of the seed Schmeiser

had taken to Humboldt Flour Mills.

Justice Julius Isaac told Zakreski that he wasn’t going to be convinced

that any of Schmeiser’s rights and freedoms guaranteed under the

charter had been violated.

“Go ahead and make it, but it’s not your best point,” he said.

During his response, Hughes said that Zakreski’s charter arguments were

not valid and should not be used in such a case.

“We are here to interpret a patent case,” said the lawyer.

He said the GM canola did not drift onto Schmeiser’s property, but was

knowingly planted by the farmer in 1998. Schmeiser testified that he

used seed from the 1997 fields where he had discovered Roundup Ready

plants to seed 1,030 acres of canola in 1998.

“He had an opportunity to use some other seed in some other bin but

what did he do? He used this seed,” Hughes told the three justices.

Hughes said Monsanto had a court order to obtain samples of Schmeiser’s

crop, so even if the Humboldt Flour Mills evidence was disallowed,

there are other samples that show the concentration of Roundup Ready

canola in Schmeiser’s fields was 95 percent.

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