Schmeiser decision may help organic case

Monsanto came out the victor in its six-year legal battle against a farmer from Bruno, Sask., but the decision may come back to haunt them.

The Supreme Court of Canada ruled in the Percy Schmeiser case that Monsanto’s patent on Roundup Ready canola is valid and enforceable, which a legal expert said could play into the hands of a group of organic farmers attempting to sue Monsanto and Bayer CropScience for the introduction of herbicide tolerant canola.

“It doesn’t hurt their chances at all,” said University of Saskatchewan law professor Martin Phillipson, who has been following both legal battles.

The Schmeiser decision means companies such as Monsanto have legal control over their patented genes, but organic growers argue biotech companies don’t have physical control over the plants that contain those genes.

They say GM plants have contaminated their fields and destroyed markets for organic canola, leading to losses assessed at more than $14 million.

Terry Zakreski, the lawyer who represented Schmeiser, is also acting as counsel for the Saskatchewan Organic Directorate, the group co-ordinating the latest court battle involving GM crops. He said there is a strong link between the two cases.

“We’re seeking to basically turn the Percy Schmeiser result into liability in some respects in the SOD case.”

The Supreme Court has made it clear Monsanto owns the Roundup Ready gene and can enforce those ownership rights.

“With ownership comes responsibility,” Zakreski said.

The company is liable for any patented material that escapes from fields where it was supposed to be contained, he added.

Schmeiser said while the Supreme Court decision is a victory for Monsanto, it could lead to “massive liability” problems for the company.

“I think that is really going to come back to haunt them,” said the man who has become an international celebrity in anti-biotech circles.

Monsanto spokesperson Trish Jordan said the two cases are unrelated, adding the company has always acted responsibly when it comes to stewardship issues associated with its Roundup Ready product.

“In the isolated situations where there is pollen flow or something accidentally ends up in a farmer’s fields, we have a program in place and we address those situations to the farmer’s satisfaction.”

A certification hearing for the SOD case has been set for Sept. 14-15. If it is certified as a class action suit, any canola farmer who has been certified organic since 1996 will be eligible to participate.

The organic growers filed a statement of claim on Jan. 10, 2002, seeking damages related to GM canola and an injunction against the introduction of Roundup Ready wheat.

Zakreski said the organic farmers may drop the Roundup Ready wheat portion of their lawsuit now that Monsanto has announced it is temporarily shelving the project.

“That’s still up in the air because we really don’t have something firm from Monsanto that they’re withdrawing their licence.”

Phillipson said the SOD case is more tantalizing than the Schmeiser case from a legal perspective because this time farmers are taking the biotech company to court.

“Schmeiser was all about Monsanto’s rights. SOD is all about Monsanto’s obligations.”

That doesn’t mean the Schmeiser case was insignificant.

“Despite the fact that he lost, (Schmeiser) has changed the picture completely. People are now very aware of the issues over patenting of ag biotech products.”

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