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
“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
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.