Patent Case Sides with Monsanto

Supreme Court of Canada rules that Saskatchewan farmer infringed patent laws by planting Roundup Ready canola without paying for the rights. Compiled by staff

Published on: May 21, 2004

The Canadian Supreme Court ruled today that a Saskatchewan farmer who says he was unaware that patented genetically engineered crops were growing in his field must compensate the seed developer Monsanto for theft of its intellectual property.

Monsanto originally pursued this case in the Federal Court of Canada because Percy Schmeiser knowingly infringed Monsanto's patents on Roundup Ready technology by planting 1,030 acres of Roundup Ready canola without paying the required license fee for using the technology. After reviewing all the evidence, Justice Andrew MacKay of the Federal Court of Canada did not find Schmeiser's explanation of the events credible and held him liable for infringing Monsanto's patent.

"This case highlights the legal risks genetically engineered crops pose for farmers - even those who haven't purchased them," says Kristin Dawkins, Vice President at the Institute for Agriculture and Trade Policy. "Today's ruling is a major setback for farmers in Canada, and their ownership of what is grown on their farm. It's time to clarify these issues in the U.S. to better protect the rights of farmers."

Monsanto has sued hundreds of farmers over the last decade for using genetically engineered seeds without their permission. The Schmeiser case is likely the beginning of a series of complicated legal battles regarding genetically engineered seeds to take place in the coming years. Many difficult issues such as farmer liability when genetic contamination occurs have yet to be determined in U.S. courts. These liability questions are being driven by emerging evidence that genetically engineered crops are contaminating non-GE fields and the food supply at an alarming rate. According to a recent study by the Union of Concerned Scientists, genetically engineered DNA has contaminated traditional seeds of corn, soybeans and canola that had no history of genetic engineering. As a result, even farmers trying to grow non-biotech crops are finding their own farms contaminated.

In the case of Canadian farmer Percy Schmeiser vs. Monsanto, detectable levels of DNA from genetically engineered Roundup Ready canola were discovered on Schmeiser's farm. Schmeiser had not bought the GE canola, nor had he signed the seed contract that comes with such a purchase. But tests of the seed used by Schmeiser indicated that it had been contaminated with genetically engineered material. Monsanto sued Schmeiser to get payment on the genetically engineered canola. Also at issue was whether Schmeiser had the right to save seed from the crop thereby using the GE-contaminated canola in future years - a typical practice among many farmers.

There are signs that U.S. Courts are awakening to the challenges of balancing farmers rights and those of biotech companies. In an April 23 opinion, Judge Arthur J. Gajarsa of the U.S. Court of Appeals for the Federal Circuit in SmithKline Beecham Corp. v. Apotex Corp., wrote: "Consider, for example, what might happen if the wind blew fertile, genetically modified blue corn protected by a patent, from the field of a single farmer into neighboring cornfields. The harvest from those fields would soon contain at least some patented blue corn mixed in with the traditional public domain yellow corn--thereby infringing the patent. The wind would continue to blow, and the patented crops would spread throughout the continent, thereby turning most (if not all) North American corn farmers into unintentional, yet inevitable, infringers. The implication -- that the patent owner would be entitled to collect royalties from every farmer whose cornfields contained even a few patented blue stalks -- cannot possibly be correct."

The Canadian Supreme Court ruling can be found at: www.lexum.umontreal.ca/csc-scc/en/rec/index.html

IATP has produced the report, GMO Liability Threats for Farmers. (This link requires your computer to have Adobe Acrobat Reader. For a free download, visit www.adobe.com.)