Schmeiser loses but war not over

The battle that pitted a Saskatchewan farmer against international agricultural giant Monsanto is over but the war over patents for genetically modified organisms will continue in a different arena, says a legal analyst.

On May 21, the Supreme Court of Canada upheld a lower court ruling that Bruno, Sask., farmer Percy Schmeiser violated Monsanto’s patent by growing canola containing the Roundup Ready gene.

University of Saskatchewan law professor Martin Phillipson said the Supreme Court’s ruling means genetically modified crop systems will continue to receive protection in Canada.

But contained within the decision is an important message for the federal government. The nine judges clearly wrestled with the decision, five finding Monsanto’s patent to be valid and four saying there was no infringement.

There was also a 5-4 judgment in the 2002 Harvard Mouse case, where the Supreme Court ruled that higher life forms are not patentable.

“Clearly the law in this area is not in a particularly settled state,” said Phillipson.

“There should be some sort of legislation coming from the feds to make it absolutely clear what’s protected, what farmers can do and what farmers can’t do.”

Schmeiser also wants the issue to wend its way into the political arena, but somebody else will have to lead that charge, said the 73-year-old retired farmer and former member of Saskatchewan’s legislative assembly.

“I really believe at this point my battle is over. I’ve gone as far as I could,” he told reporters gathered at a Saskatoon hotel room a few hours after the decision was published.

Trish Jordan, spokesperson for Monsanto Canada, said the biotech company is elated by the ruling.

“We’re very happy that the Supreme Court of Canada found our patent to be valid and also enforceable.”

She downplayed the slim margin of victory.

“Last time I checked, if you win the Stanley Cup final 5-4, you take home the cup.”

Jordan called it an important victory for the 30,000 Canadian farmers who pay for Monsanto’s Roundup Ready technology.

“The other thing that I think the ruling clarified is that Mr. Schmeiser was not an innocent infringer. We’ve always believed that and that’s why we took this case forward.”

Based on the facts found by the trial judge, the Supreme Court ruled, “Mr. Schmeiser was not an innocent bystander; rather, he actively cultivated Roundup Ready canola.”

But at his news conference, Schmeiser steadfastly denied he knowingly planted the company’s seed.

“It was my own seed that we had developed over many years,” he insisted.

Schmeiser said he considered the ruling a partial victory because the Supreme Court dismissed an earlier trial judge’s award of $172,832 in costs and damages he was to pay Monsanto.

“I can save my farm and save my home,” he said.

Each party will have to pay its own legal costs. Schmeiser said his bill would come to $400,000.

As of Oct. 31, 2003, the farmer had received $170,585 in donations to his legal fund.

According to court documents, Monsanto’s legal fees for the first trial totalled $727,000. Jordan said that represents the lion’s share of its legal bill.

“The other trials are not costly. They’re nothing.”

She said Monsanto has always contended this case was about protecting intellectual property rights and the granting of awards and damages was immaterial.

“It was not about monetary gain.”

Jordan said the decision sends a “very significant message” to the research community that Canada is a place that fosters, encourages and protects agricultural innovation.

Schmeiser said he sent a message to his fellow farmers by taking on a multi-national corporation.

“We fought that for the rights of farmers. And I know if my grandfather and my father were here today, that’s exactly what they would want me to do,” he said, his eyes welling up with tears.

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