[R-G] Fw: Canada Supreme Court hearing of Percy Schmeiser

[Tim Murphy]

http://www.cropchoice.com/leadstry.asp?RecID=2370

Monday, Feb. 2, 2004 -- CropChoice guest commentary

Observations on the Supreme Court hearing of Percy Schmeiser

by E. Ann Clark, Ph.D. Department of Plant Agriculture University of 
Guelph (eaclark at uoguelph.ca)

 -- I am not easy to impress, but young Terry Zakreski, the lawyer 
representing Saskatchewan farmer Percy Schmeiser, made an argument before 
the Supreme Court of Canada [Jan. 20, 2004] that was nothing short of 
brilliant. Not only was it original, with razor-sharp logic, but the 
delivery was calm, focused, deliberate, and articulate.

Picture the scene. The nine Supreme Court judges, resplendent in their red 
robes, file in and take their places at the far end of the room. The tall, 
slender, pale lawyer from Saskatoon sits alone on the Appellants 
(Schmeiser) side of the aisle, flanked by three lawyers for the Respondent 
(Monsanto) across the aisle. Behind Zakreski are 2 pairs of lawyers and a 
whole lot of vacant seats. The pairs represent two sets of Interveners 
supporting Schmeisers position: first, a consortium of 6 NGOs (Council of 
Canadians, Action Group on Erosion, Technology, and Concentration, Sierra 
Club, National Farmers Union, Research Foundation for Science, Technology 
and Ecology, and the International Center for Technology Assessment), and 
second, the Attorney General for Ontario. Stacked up behind the Monsanto 
contingent are a bevy of two or three lawyers for each of the other 
Interveners granted permission to speak in support of Monsantos position - 
the Canola Council of Canada, BIOTECanada, and the Canadian Seed Trade 
Association. The audience at the back of the courtroom is limited to 50 
hardy souls, most of whom have braved hours of truly bone-chilling 
conditions on the steps of the Supreme Court to ensure a place at the 
proceedings.

Conduct is formalized, with the Appellant and Respondent each accorded one 
hour to make their case, while the five Interveners are given from 7.5 to 
15 minutes each. The Judges are free to interrupt at any time to challenge 
the lawyers. The Appellant has 5 minutes to rebut. It is all over by 1PM, 
when the judges retire to deliberate.

When he rises to face the Supreme Court of Canada, Zakreski presents a 
three-fold argument.

1. The actual wording of Monsantos Patent 830, entitled 
Glyphosate-Resistant Plants consists of 52 claims encompassing various 
aspects of the RR gene itself and the RR cells that result from inserting 
the gene. But most critically, Monsantos patent makes no reference to 
seeds, plants, or crops. Thus, although its actual patent ends at the 
cell, Monsanto has chosen to commercialize its patent rights at the level 
of seeds, plants, and indeed, whole crop fields. Paraphrasing from 
Zakreskis argument, while Monsanto says that they dont own Canada, they 
nonetheless claim every province and territory in Canada.

This is a critical distinction, because a seed or a plant is a higher life 
form, and in its ground-breaking Harvard Mouse (oncomouse) Decision last 
year, this very same Court had ruled that higher life forms could not be 
patented in Canada. Zakreski cited other evidence showing that the Patent 
Act was never intended to apply to seeds or plants, which instead are 
covered under the Plant Breeders Rights Act.

Thus, in order to support Monsantos patent infringement claim against 
Schmeiser, the Court would necessarily have to conclude that seeds and 
plants - higher life forms - are subject to the Patent Act, directly 
contravening both their own decision on the Harvard oncomouse case and the 
wording of the Patent Act itself. A finding against Monsantos claim would 
not deny Monsanto, or indeed, the biotech industry, their lawful patent 
rights. But it would affirm that patent rights are as actually worded in 
the patent - no more, and no less.

Either way, the ruling of the Supreme Court will not affect the provisions 
of the Plant Breeders Rights Act, which has been and will continue to be 
the dominant vehicle for protecting the intellectual property rights of 
innovative plant breeders in Canada. Paraphrasing again from Zakreskis 
closing statement, it is not Schmeisers fault that Monsanto chose to 
protect its intellectual property inappropriately, under the Patent Act, 
instead of using the Plant Breeders Rights Act as it was intended.

2. The Patent Act gives rights over the making, constructing, and using of 
an invention and selling it to others to be used. Infringement occurs when 
someone makes, constructs, or uses a patented invention for sale, without 
the permission of the patent owner.

Yet, Schmeiser never made, constructed, used, or sold the RR gene. He grew 
a 1030 ac canola crop in 1998, of which some of the plants inadvertently 
contained the RR gene. This is the crop for which he was charged with 
patent infringement.

In order to use the patented RR gene, Schmeiser would have to have sprayed 
Roundup on his 1030 ac crop - which he did not do. The RR gene confers 
only one trait - tolerance to Roundup - a trait of relevance only when the 
herbicide Roundup is actually sprayed. Quoting from an earlier court 
decision, The uncontradicted evidence of Mr. Schmeiser is that he did not 
spray Roundup on his 1998 canola crop (Para. 29, Court of Appeal). Not 
only did Schmeiser make this statement, but he also presented to the lower 
court receipts showing that he had purchased his normal complement of 
herbicides in 1998. Monsanto presented no evidence that he had purchased 
or applied Roundup to the 1998 crop.

Zakreski argued that simply growing RR-contaminated plants for sale as 
grain - as done by Schmeiser - did not engage the utility of Patent 830", 
because the gene neither caused Mr. Schmeisers plants to grow, nor to grow 
differently or better. The gene added no value at time of sale. Indeed, as 
shown by recent market trends, the presence of GM traits actually reduces 
the value of Canadian canola. Zakreski also noted that the rights granted 
by Parliament under the Patent Act do not pertain to the simple presence 
or handling of an invention, but rather, to the exploitation or utility of 
the invention. Thus, because Schmeiser did not use the patented gene, he 
did not infringe on Monsantos patent.

3. The uncontainability of GM traits, as acknowledged by Monsanto experts 
in lower court proceedings, ensured off-site contamination of fields not 
under contract to Monsanto. Aaron Mitchell, the Biotechnology manager for 
Monsanto Canada, stated that Monsanto always expected that fields of its 
genetically modified canola would cross-pollinate with fields of regular 
canola (AR Vol. IV, p.600 (20-30)). Zakreski presented numerous examples 
to substantiate Monsantos expectation of uncontrollable contamination from 
its RR canola.

In this particular case, a local RR-canola grower testified in lower court 
that while hauling his grain to market past Schmeisers fields in 1997, a 
tarp came loose and acted like a cyclone releasing considerable seed into 
Schmeisers adjoining fields (AR Vol. VI. pp. 1132-5). Wind-blown swaths 
from adjoining RR-canola fields landing on Schmeiser land were also 
acknowledged by the lower court judge. Because Schmeiser saves his own 
seed for replanting, the contamination carried into his next years crop - 
for which patent infringement was alleged. Thus, the initial sources of 
contamination were an inadvertent but nonetheless unavoidable result of 
normal farm practice.

The degree of contamination in the 1998 crop is in dispute, with Monsantos 
figures showing 95-98%, with a value for each of 27 in-field samples. Yet, 
the same samples, analyzed at the University of Manitoba, showed 0-68% 
contamination, with some samples sufficiently degraded as to be 
unmeasurable.

If the simple presence of RR plants in a field is enough to constitute 
patent infringement, then most Western Canadian farmers would be patent 
infringers - albeit innocent bystanders or passive recipients of unwanted 
and unwelcome RR genes. Accordingly, Zakreski argued that to sustain 
rights over their own property, farmers should be granted a waiver or 
implied license to allow them to save and re-use their own seed - a lawful 
and traditional use of agricultural property on the Schmeiser farm - 
regardless of contamination which they could not control anyway.

He further argued that it was wrong to award the full value of Schmeisers 
crop to Monsanto simply because the gene was found on his farm, given that 
he had not benefitted in any way from the contamination, and indeed, could 
not have prevented it.

To illustrate the unworkability of awarding the full value of the crop to 
the owner of a patented, contaminating gene, Zakreski presented the 
hypothetical but entirely plausible example of a farmer whose canola was 
inadvertently contaminated by two different genes, perhaps from two 
different neighbors. Would the owner of each patented gene be entitled to 
the full value of the crop? In other words, would the farmer have to pay 
each patent owner 100% of the value of his crop?

When Zakreski resumed his seat, the atmosphere of the silent, dignified 
chambers was positively electric. May his arguments be as powerful and 
compelling to the judges of the Supreme Court of Canada as they were to 
me.