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Canada justices weigh in on biotechnology battle

Lawyers for Monsanto drew pointed questions from Canada's Supreme Court justices on Tuesday in a dispute with a  canola farmer that has become a biotech battleground.
Canadian farmer Percy Schmeiser calls himself an 'accidental activist.'Jonathan Hayward / AP
/ Source: The Associated Press

Lawyers for agribusiness titan Monsanto Co. drew pointed questions from Canada's Supreme Court on Tuesday in a dispute with a Saskatchewan canola farmer that has become a cause for biotechnology opponents and proponents around the globe.

Monsanto sued the farmer, Percy Schmeiser, after its agents found biotech canola growing in his fields in 1997. It contends he replanted seeds from those plants without paying a technology fee of about $12 an acre.

But Schmeiser says the Monsanto canola, originating from neighbors’ fields, got onto his 1,400 acres without his involvement or knowledge. The 73-year-old farmer says the contamination of his crops destroyed a lifetime of work improving them, so it’s hardly right that he would have to pay for Monsanto’s seed.

The biotech seed could have migrated to Schmeiser’s land as airborne pollen, carried by animals or spilled from a cart, he speculates.

But Monsanto, which has a lien on Schmeiser’s farm after two lower-court victories, says there was simply too much biotech canola in his fields for the accidental exposure explanation to be credible.

It insists Schmeiser must pay every year for seed, just like 30,000 other canola farmers in Canada, where roughly half the 10 million acres of canola have been converted since 1996 to Monsanto’s variety, which is engineered to survive the company’s patented weed killer Roundup.

“The bottom line for us is that his possession and growing was not an accident,” Monsanto spokeswoman Trish Jordan said.

Court questions, arguments
Some farmers, especially those from developing nations, fear that natural or accidental contamination of their conventional crops with biotech varieties will give biotech companies licenses to seize their crops.

“This exposes countless farmers to potential liability,” argued Steven Shrybman, who is representing the Washington, D.C.-based International Center for Technology Assessment and five other activist groups who joined the Canada Supreme Court case in support of Schmeiser.

Schmeiser’s lawyer argued that in light of another court ruling refusing to patent “a higher life form” — a genetically engineered mouse created by Harvard University — Monsanto’s patent on the engineered gene in canola does not give it ownership of the entire plant.

Robert Hughes, Monsanto’s lawyer, argued that the company wasn’t seeking a patent on the entire canola plant, but rather an “ingredient” of the plant. He likened the company’s patent to that of an inventor who develops a new kind of steel for automobiles and receives a patent for that component rather than the whole car.

“According to the Harvard Mouse ruling, I don’t think the steel analogy works,” countered Supreme Court Justice Louise Arbour.

Though the nine-judge panel’s leaning was inscrutable, industry lawyers were peppered with even sharper questions than the other side.

Justice Ian Binnie appeared skeptical of the damage award, asking what additional profit Schmeiser made with Monsanto’s seeds than conventional seeds if Schmeiser, as he has testified, didn’t spray the company’s herbicide.

Monsanto’s lawyers were also rebuffed when arguing that Schmeiser’s fields contained such a high percentage of genetically engineered plants — as much as 98 percent — that no innocent explanation could explain how Monsanto’s canola ended up in the farmer’s field.

“There is no evidence that Mr. Schmeiser bought the seeds,” snapped Justice Louis LeBel, to the delight of Schmeiser’s supporters in the packed courthouse.

Monsanto and its backers who joined the case — an industry lobbyist and two farm groups — argued that invalidating the company’s patent could do it and the country economic harm and undermine Canada’s patent system.

“Patents create a climate that favors new research,” argued A. David Morrow, a lawyer for the Canadian Seed Trade Association, who said his organization “is in favor of biotechnology research and therefore in favor of strong Canadian patent protection.”

His supporters also include the government of Ontario, which argues that public health suffers when life forms are patented. The province is ignoring patents held by Myriad Genetics of Salt Lake City on two genes implicated in breast cancer, administering its own cancer tests at a third of Myriad’s list price.

The Canadian justices are expected to rule in several months.

Looking for U.S. case
A decision against Monsanto would be a tremendous boost for the forces mobilizing against biotechnology. Dozens of activist groups have descended on Canada’s frigid capital, determined to make Schmeiser an international cause celebre.

They’re also hunting for a U.S. Schmeiser to challenge the St. Louis-based company — perhaps from among the 90 farmers activists say Monsanto has sued for seed theft since 1997.

“This is so much bigger than Percy,” said Nadege Adam of the Council of Canadians, which formed a coalition of Schmeiser defenders that also includes the Sierra Club of Canada and the Washington D.C.-based International Center for Technology Assessment.

Monsanto, which sold more than $1.6 billion in genetically engineered seeds last year after spending about $500 million on research and development, has tried to downplay Schmeiser’s fame. The company stresses that it has no choice but to crack down on any farmer using its technology for free.

“Clearly, we believe that respect for intellectual property is important,” Jordan said. “We have invested quite a bit in this technology and we expect people to play by the rules and we expect a return on it.”

For centuries, farmers have improved their crops by culling their best plants and husbanding seeds for the next planting season. Developing nations see these practices as sacrosanct, but increasingly threatened by the spread of genetically modified crops, which even subsistence farmers are required to pay for each year.

'Who can patent life?'
In the end, it’s the questions about life itself that have attracted all the attention from farmers, activists, biotech lobbyists and the international press corps.

“Who can patent life, and who owns life, whether it’s seeds, plants, animals and so on?” Schmeiser asked Monday at a news conference. “Those are some of the main issues that really concern me on a personal level.”

Schmeiser views the dispute through a property rights prism, arguing that no corporation should have the control Monsanto has asserted over the farms where its patented varieties of crops are grown.

Similar views are strongly held in India, South America and elsewhere in the developing world. Led by the Indian activist Vandana Shiva, that movement has galvanized around Schmeiser, a former conservative Catholic member of his provincial parliament and ex-mayor of Bruno, Saskatchewan, population 600.

Schmeiser has visited 40 countries in the last two years, receiving standing ovations from organic farming conventions and anti-biotech rallies from Marin County, Calif. to Osaka, Japan. Worldwide donations have poured in.

Still, Schmeiser has paid a steep price for refusing to settle. He owes Monsanto about $140,000 in judgments, amassed legal fees of $230,000, and has rented out all but 140 acres of his farm.

“The stress this has caused my family is unreal,” said Schmeiser, who considers himself an accidental activist. “It was not by choice,” he said. “I’d rather be fishing with my 15 grandchildren.”

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