Court upholds Monsanto win

Despite a recent court decision, farmers still don’t know if they’re

legally liable for rogue Roundup Ready canola growing in their fields.

Last week, a three-judge appeal panel of the Federal Court of Canada

upheld a trial judge’s ruling against Bruno, Sask., farmer Percy

Schmeiser, who was found responsible for knowingly growing Roundup

Ready canola without a licence.

Schmeiser said he plans to appeal to the Supreme Court of Canada.

Monsanto said it is pleased with the ruling.

The judges dealt with the issue of rogue canola, but did not completely

clarify it.

“This is not the definitive answer,” said University of Saskatchewan

intellectual property law professor Martin Phillipson.

The appeal court judges accepted the trial court judge’s finding that

Schmeiser knew the crop he planted in 1998 had a high proportion of

glyphosate-resistant seed, and therefore was guilty of knowingly

growing a patented crop. It didn’t deal with how his 1997 crop came to

contain the gene in the first place.

But in an earlier section of the appeal judgment, justice Karen Sharlow

suggested Monsanto’s ability to act against farmers who innocently end

up with Roundup Ready volunteers is limited. She left the door open to

lawsuits if a farmer knows that some seed may be contaminated with the

patented gene and still plants a crop with it.

Phillipson said this small section of the judgment amounts to a judge’s

opinion and is not a final interpretation of law because the matter is

not central to the case.

“If you look at that comment in a negative way, what (the judge) is

saying is that if you think there might be some Roundup Ready in there,

you’d better not plant that next year or Monsanto might have (a claim

against you),” Phillipson said.

The ruling backs up most of what the trial judge decided, and dismisses

Schmeiser’s lawyers’ arguments against the ruling. It also dismisses

Monsanto’s claim for a higher financial penalty against Schmeiser.

Phillipson said the Supreme Court is unlikely to hear Schmeiser’s

appeal because the legal issues were not complicated.

Upcoming cases are expected to delve more into Monsanto’s

responsibility for the spread of genetically modified organisms, he


The Saskatchewan Organic Directorate has filed a suit against Monsanto

for allegedly contaminating organic canola with its patented gene, and

Schmeiser has filed a counterclaim against Monsanto for allegedly

contaminating his crop.

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