Ont. gov’t gets say in Schmeiser appeal

The government of Ontario is weighing in on the legal dispute between Percy Schmeiser and Monsanto Canada Inc.

It is one of a number of groups granted intervener status in the appeal, which is scheduled to be tried in front of the Supreme Court of Canada on Jan. 20, 2004.

Interveners provide written or oral arguments on the case that will be considered by the judges.

Schmeiser was originally found guilty of violating Monsanto Canada Inc.’s patent on Roundup Ready canola technology on March 29, 2001. That decision was upheld by a three-judge panel of the Federal Court of Appeal on Sept. 4, 2002.

Most of the 11 interveners have obvious connections to the case, like Ag-West Biotech Inc., the National Farmers Union, the Canadian Canola Growers Association and the Council of Canadians.

The Ontario attorney general’s submission stands out in that respect. “Ontario’s focus here is on the overall effect on health care of the broad application on gene patents and exclusive intellectual property rights,” said government spokesperson Brendan Crawley.

The province said this is the first time the highest court in the land will consider issues related to the patenting of genes and DNA sequences in the context of a patent infringement action.

“That has important implications for the development of public policy in Ontario, including the delivery of health care to its residents.”

Environmental groups from Canada, the United States and India have also been granted intervener status in the case.

University of Saskatchewan associate law professor Martin Phillipson has followed the Schmeiser case. He thinks groups have taken an interest in it for socioeconomic reasons. It has garnered international attention because people have bought into Schmeiser’s David vs. Goliath portrayal of the event.

“It has gained much more play worldwide than it has in Canada. He’s a cult figure in the Third World and in the anti-globalization movement,” said Phillipson.

The dispute raises big questions about the control of agriculture and people find that intriguing, but Phillipson doesn’t think it has much legal significance.

“The intellectual property stuff is a slam dunk. I still think that (Schmeiser is) guilty of patent infringement as it is currently defined,” said the professor.

In his estimation, the two previous lower court rulings were “absolutely solid,” in terms of how they applied existing legal principles.

“Quite frankly I am a little bit surprised that (the Supreme Court) gave leave to appeal.”

Phillipson said the Saskatchewan Organic Directorate’s attempt to file a class action lawsuit against Monsanto Canada Inc. and Aventis Cropscience Canada Holding Inc. is more interesting from a legal perspective.

The directorate is seeking damages on behalf of organic farmers affected by GM canola and an injunction against the introduction of GM wheat.

“That’s the more interesting case because the farmers in that one are on the offensive, whereas in this one (Schmeiser) is on the defensive,” said Phillipson.

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