Schmeiser win could hurt seed research

A farmer’s ability to save seed for next year’s planting, at the heart of the fight between Monsanto Inc. and Saskatchewan farmer Percy Schmeiser, is incompatible with patent rights required by seed companies to develop new products, says the companies’ representative.

“Within the current Patent Act, we’re saying there is no so-called farmer privilege to save seed,” Bill Leask, executive vice-president of the Canadian Seed Trade Association, said in a Jan. 29 interview. “We don’t think there should be.”

He said Canadian patent laws must offer at least the same intellectual property protections as laws in competitor countries or Canada will lose access to seed research investment and even the use of genetically modified seeds developed elsewhere.

“It’s questionable whether Canadian farmers could continue to be competitive when marketing their commodities on world markets if they did not have access to leading seed technology,” he said.

The CSTA was one of the interveners at the Jan. 20 Supreme Court hearing in the Monsanto versus Schmeiser case.

The association represents 165 seed development and sales companies ranging from the multinational Monsanto to Agricore United, Saskatchewan Wheat Pool and some farmer seed developers that are large enough to have commercial retail businesses.

Schmeiser, a Bruno, Sask., farmer, has been convicted by two lower courts of violating Monsanto’s patent on a Roundup Ready GM canola by seeding it for his 1998 crop without paying the company a licensing fee.

Schmeiser argues he obtained the seed when it blew onto his land. He said he has gone to the Supreme Court to defend a farmer’s “ancient right” to save seed for replanting.

Canada’s plant breeders’ rights law accepts the seed-saving practice as long as it is for the farmer’s own use. However, developers of genetically modified varieties generally seek property protection through the Patent Act rather than plant breeders’ rights.

Leask said there is a real threat that a court ruling weakening patent protections would create an investor chill that would discourage seed companies from investing in or serving Canadian customers. Schmeiser’s supporters have questioned that claim, calling it a threat.

“It may sound like a hollow threat but it isn’t,” said Leask. “As an example, just look to Monsanto and Argentina.”

The country’s soybean farmers have been good customers for the company’s GM seed “but the black market is so rampant there that Monsanto said it would discontinue all R and D in Argentina and farmers there are the losers.”

In Canada, public sector investment in seed research has become a fraction of the total compared to 20 years ago, when public spending accounted for up to 95 percent of seed research, said Leask.

“The proportions have virtually flipped since then and if private investment pulled out, would public come back in the way it was? I think that is highly unlikely.”

During the Supreme Court hearing, judges and lawyers alike wrestled with the issue of the implications of patenting life forms.

The court already has ruled that higher life forms cannot be patented in Canada and Monsanto lawyers were at pains to note that the patent was on a gene and not a seed.

Leask said if there is to be any change in patent rules for life forms, it should be made by Parliament after a debate, and not by judges on a point of law.

He said the seed trade association believes seeds should be patentable. The more volatile issue that may require political debate is the issue of the law and animals and, in particular, patenting implications for human reproductive technologies, said Leask.

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