Top court hears Schmeiser case

Most of the time, it was difficult to find the farmer in it.

The Supreme Court of Canada heard the celebrated case of Percy Schmeiser versus Monsanto Canada Inc., and it was largely a day of legal arguments and lawyerly dissertation on the finer points of patent law.

Monsanto opponents had promoted it as a day of judgment for the agribusiness multinational being challenged by a Saskatchewan farmer over the presence of unauthorized genetically modified canola on his land in 1998.

It took justice Ian Binnie to inject some farmer logic into the proceedings. Binnie was querying Monsanto lawyer Roger Hughes about an earlier lower court judgment that Schmeiser was guilty of patent infringement and that the company was entitled to the farmer’s 1998 profit, accepted by the judge to be $19,832.

If Schmeiser had played by the rules and paid the company the required $15 per acre fee to seed the GM Roundup Ready canola, how much would it have cost him, asked the Supreme Court judge.

Hughes said that with more than 1,000 acres at issue, it would have cost “$15,000 and change, close to $16,000.”

Binnie noted the court-accepted profit of just over $19,000 that year.

“It’s a lot of work for $3,000,” he said to laughter from the packed gallery that included supporters of Schmeiser on one side and Monsanto sympathizers on the other.

It was a day with few laughs, although some people arriving at the court on the cold Ottawa winter day Jan. 20 got a chuckle out of what some thought to be a pro-Schmeiser demonstration on the court lawn. A number of people thought to be demonstrators wore yellow, assumed to be an allusion to the yellow canola flower. It turned out it was a regular morning ritual by adherents of the Chinese exercise and meditation group Falun Gong, which does not have a position on GM canola.

Inside the historic building, Monsanto insisted that the highest Canadian court should affirm lower court judgments that Schmeiser deliberately seeded GM canola in 1998, however it arrived on his land in 1997. Since 1993, Monsanto has had a patent on a gene in the canola seed that makes it resistant to the Monsanto herbicide Roundup. The company insists Schmeiser infringed on the patent and was properly convicted and fined.

The company noted that Federal Court judge Andrew MacKay accepted evidence that up to 98 percent of the canola on 1,030 acres at the Schmeiser farm was found to be Roundup tolerant.

“At such a high level of tolerance, justice MacKay ruled the seed could only be commercial quality and could not have arrived in Mr. Schmeiser’s field by accident.”

Schmeiser lawyer Terry Zakreski insisted there was no evidence the farmer had deliberately violated the patent and even if he had, the penalty imposed was excessive.

Lawyers from the National Farmers Union raised the broader issue that patents that restrict farmer access to seed deny farmers their ancient right to save and replant seed and gives agribusiness more power.

The Canadian Seed Trade Association intervened at the court to argue the Patent Act does not provide for seed saving and a court decision that undermined the Patent Act would drive research out of Canada, to farmer detriment.

Several judges indicated, through questioning, an interest in Zakreski’s argument that the patented gene only is useful if Roundup is sprayed to kill surrounding weeds but the tolerant canola survives.

Since there is no evidence that Schmeiser used Roundup, the patented gene was never triggered and the argument is invalid that a patented gene had been used illegally.

Hughes said the mere presence of Roundup tolerant canola seed is evidence that the farmer had it illegally since he had not paid Monsanto for the right to have it.

Canadian Canola Growers Association president Ross Ravelli from Dawson Creek, B.C., was on hand to tell reporters that while the association was taking neither side, it intervened in the hearing to argue that farmers want access to the GM technology and any court decision that undermined patent rights would hurt farmers.

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