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Schmeiser seeks Supreme Court appeal in Monsanto case

(Thursday, Nov. 7, 2002 -- CropChoice news) --

Globe and Mail, 11/06/02:A Saskatchewan farmer billing himself as David versus Goliath in a legal fight against a biotechnology giant has applied to take Monsanto Co. to the Supreme Court of Canada in a case challenging the patentability of genetically modified life forms.

Percy Schmeiser, 71, of Bruno, Sask., is seeking leave to appeal a decision by the Federal Court of Appeal which upheld a lower court's ruling that found him guilty of patent infringement for growing a gene-altered canola variety immune to Monsato's powerful Roundup weed killer.

"This proposed appeal raises for the first time issues regarding the infringement of a patent for genetically altered living material," documents filed in the Supreme Court of Canada state. "By giving a very broad scope to the intellectual property rights of the biotechnology patent holder, the decision of the Federal Court of Appeal significantly narrows the proprietary rights of farmers over their seeds and crops."

Mr. Schmeiser has argued that the Roundup Ready canola seed arrived in his field by accident a few years ago, either from blowing off a passing truck or by cross-pollination from neighboring fields.

His case has received international attention and the prairie farmer has become an outspoken agricultural advocate. He was travelling yesterday in Ecuador on a lecture tour.

"Percy obviously feels the case raises significant issues for agriculture and the law in Canada," said his lawyer, Terry Zakreski. It's up to the Supreme Court to determine whether or not the appeal will be heard.

Mr. Schmeiser's lawyers argue the case is unique because it involves "diffuse" patented material. "Unlike the owner of the famous 'Harvard mouse' -- Monsanto released this diffuse material into the environment with the knowledge that it could not control the spread of the material," documents filed in the top court state.

The Supreme Court of Canada is to rule soon on the patentability of the Harvard mouse, genetically modified for use in cancer research.

But Canada's spokesperson for Monsanto Co., Trish Jordan, said the case of Mr. Schmeiser is a lot simpler than that.

"The actual case is pretty cut and dried," said Ms. Jordan. "Mr. Schneider was found guilty of patent violation. This was no accident."

In a March, 2001, ruling, federal Judge Andrew MacKay said the "balance of probabilities" showed Mr. Schmeiser grew herbicide-resistant canola without paying Monsanto Co. for the seeds.

Farmers pay Monsanto Co. a license fee of $15 an acre to use its gene-altered canola seed.

Farmers who don't pay face legal action if they are reported. An estimated 30,000 Canadian farmers use the product, said Ms. Jordan. So far, Mr. Schmeiser is the only one that has been taken to court. But 50 farmers have settled out of court in Canada with Monsanto Co.

Mr. Schmeister was ordered to pay Monsanto Co. $12,245 in damages and $100,000 in court costs.

The Council of Canadians yesterday called on the federal government to take a stand against patenting life forms in light of Mr. Schmeiser's legal battle.

"Our laws have not kept up with the science," said spokeswoman Nadege Adam. "Companies like Monsanto are taking advantage of the lack of regulatory clarity on the patenting of life forms and are taking farmers to court, suing them for all they've got."

Many researchers say they should be allowed to patent their genetic discoveries so they can reap the royalties when those discoveries are put to use by others. But others argue that genes are at the core of life and should not be treated as commercial property.