Advisers suggest seed saving rights

The government’s main committee advising on private sector

biotechnology is recommending that patent laws be changed to take

account of the right of farmers to save seed for replanting, even if

the original crop has been patented.

But that can only occur if the patent holder does not prohibit it

through the original sales contract with the farmer.

The Canadian Biotechnology Advisory Committee said there is a

traditional farmer’s privilege and it should be recognized in the

Patent Act.

“It should specify that farmers are permitted to save and sow seed from

patented plants or to breed 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,” said the committee

report given June 6 to industry minister Allan Rock.

In other words, the saved seed could not be sold as seed to someone


The committee also recommended that the Patent Act protect from

prosecution “innocent bystanders” whose fields or animals accidentally

mingle with patented varieties.

It recommended that new varieties of animal, but not humans, should be

eligible for patents if they meet the test of “novelty, non-obviousness

and utility”.

At a June 9 news conference during an international biotechnology

conference in Toronto, Rock said it is important that Canadian laws

protect inventors of new products.

But he had nothing to say about the farmer’s privilege recommendation.

“I have no comment until I have read the report and considered it,” he


Meanwhile, some officials from the committee were scrambling the same

day to insist that the recommendation would have had no bearing on the

recent case of Saskatchewan farmer Percy Schmeiser and his unsuccessful

attempt to defend himself against Monsanto charges that he grew

genetically modified canola without paying a royalty. In Ottawa,

several politicians read the report and thought it would have given

Schmeiser a defence.

Schmeiser, in commenting on the news, said “in a nutshell I’m very

happy to hear that because that’s what I’ve been fighting for for the

last three years.”

But committee member Marnie McCall said the recommendations would not

have given Schmeiser a defence. She said the advisory committee added a

footnote indicating that the holder of the patent could include in its

sales contract a provision that seed could not be saved and sown

without a further royalty payment.

“Under license, patentees can impose whatever contractual obligations

they wish, including an obligation on the farmer not to reuse seeds,”

said the report.

So a farmer could invoke farmer privilege to save seed from his crop

only if the seed patent holder does not prohibit it in the sales


Schmeiser said the report doesn’t address concerns raised by organic

farmers about GM contamination of their crops or the contamination of

conventional canola and wheat. He also said it doesn’t deal with the

economic impact of growing a crop like GM wheat, which could destroy

markets for conventional wheat.

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