[ Agri-giant Monsanto sued a Canadian farmer into whose fields its canola seed drifted by accident — and won. Although the Canadian Supreme Court did not award Monsanto the farmer’s profits, the precedent is set: “wherever a gene wanders, it’s under Monsanto’s control.” Worse, it appears the case leaves open the possibility that in future cases of accidental genetic drift, Monsanto might be entitled to profits. –BL ]
Monsanto Wins Patent Case on Plant Genes
by BERNARD SIMON
TORONTO, May 21 – In a case central to the international debate over the right to patent gene-engineered organisms, Canada’s Supreme Court ruled on Friday that a Saskatchewan farmer infringed Monsanto’s patent on genetically modified canola, even though he said the seeds landed in his fields by accident.
While the ruling upholds Monsanto’s patent rights, there is no immediate financial benefit to the company. The court said Monsanto was not entitled to profits earned by the farmer, Percy Schmeiser, from his genetically modified crop because he had not financially benefited from the plants’ engineered ability to withstand Monsanto’s herbicide Roundup.
Mr. Schmeiser and his supporters, including numerous farm and environmental groups, expressed disappointment that the court had confirmed Monsanto’s right to patent a plant gene and control its use by farmers.
“It’s not nearly the victory that we were looking for,” Mr. Schmeiser said at a news conference in Saskatoon.
Pat Mooney, executive director of ETC, a nonprofit environmental group based in Winnipeg, Manitoba, said the ruling suggested that “wherever a gene wanders, it’s under Monsanto’s control.”
But a patent law expert, Eileen McMahon, a partner at the Toronto law firm Torys, hailed the ruling as “a fantastic decision in terms of biotechnology and patents.” According to Ms. McMahon, “we have a strong signal that cells and genes are patentable.”
Monsanto also welcomed the decision, saying in a news release that it “has set a world standard in intellectual property protection.”
While Canadian court decisions have no direct bearing on American law, Andrew Kimbrell, executive director of the Center for Food Safety in Washington, said that the Canadian judgment could nonetheless have an impact on similar claims by Monsanto against American farmers.
Almost 100 such cases have so far gone to trial in the United States, and farmers have paid penalties averaging $100,000 each to Monsanto. Mr. Kimbrell said if American courts followed the Canadian court’s example in not requiring Mr. Schmeiser to repay his profits, it might reduce the economic incentive for Monsanto to pursue other farmers.
The case involving Mr. Schmeiser, who is 73, had become a rallying point for critics of genetically modified plants. “He touched upon a long-standing issue that is not resolved globally,” said Thomas Redick, a partner at Gallop Johnson and Neuman, a law firm in St. Louis.
In 1997, while spraying around power poles and ditches with Monsanto’s Roundup herbicide near a three-acre canola field, Mr. Schmeiser noticed that some canola plants were unaffected by the weed killer. He then sprayed the entire field, and discovered that most of the plants were unfazed.
After he harvested that year’s canola crop, Mr. Schmeiser stored a sizable quantify of seed from the Roundup-resistant plot, which he used as part of his planting the following year of 1,000 acres of canola.
A Monsanto investigator had taken samples in 1997 from canola plants growing along a road next to one of Mr. Schmeiser’s fields. Testing revealed that the herbicide-resistant plants were Monsanto’s genetically modified canola, known as Roundup Ready, which is specifically designed to resist Roundup herbicide. The company confronted Mr. Schmeiser in March 1998, warning him that planting the Roundup-resistant seeds he had saved would infringe the company’s patent rights. He planted them anyway.
Mr. Schmeiser has surmised that the genetically modified seed either blew onto his property from neighboring farms or fell off passing trucks. Monsanto acknowledged that Mr Schmeiser had never placed an order for Roundup Ready canola.
The company nevertheless contended that no matter how Mr. Schmeiser obtained the Roundup Ready product, he should have signed a “technology use agreement” and paid the regular licensing fee of 15 Canadian dollars an acre. Under the licensing agreement, farmers are not allowed to save any seed for replanting and must buy new seed each year from Monsanto.
In Friday’s judgment, which upholds rulings by two lower courts, the Supreme Court concluded by a 5-to-4 margin that Mr. Schmeiser had “actively cultivated” Roundup Ready canola as part of his business, thereby infringing Monsanto’s patent.
“We emphasize that we are not concerned here with the innocent discovery by farmers of ‘blow-by’ patented plants on their land or in their cultivated fields,” the judges wrote.
Nor, they said, were they concerned with the scope of Monsanto’s patent or “the wisdom and social utility of the genetic modification of genes and cells.”
“The patented genes and cells are not merely a ‘part’ of the plant,” the court said. “Rather, the patented genes are present throughout the genetically modified plant and the patented cells compose its entire physical structure.”
Under Friday’s ruling, Mr. Schmeiser is barred from using Roundup Ready canola unless he pays Monsanto’s license fee. He must also hand over to the company any Roundup Ready seed still in his possession.
Nevertheless, the court set aside the lower courts’ decision that Mr. Schmeiser owed Monsanto 19,800 Canadian dollars in profits. The Supreme Court ruled that Mr. Schmeiser had earned the same profit from the Monsanto product as he would have from ordinary canola. It also overruled the lower courts’ decision that Mr. Schmeiser was responsible for Monsanto’s legal costs.
Farmers and environmental groups, among others, have mounted campaigns in several parts of the world against patents on genetically modified products, on the grounds that no commercial enterprise has sole rights to a living organism.
A court in southeastern France fined three people 600 euros ($722) each on Friday for destroying Monsanto test fields of genetically modified crops and awarded the company 4,000 euros in compensation for the damage. Similar charges have been brought in 11 other cases in France in the last six years.