In a biotech battle watched around the world, a Canadian farmer who tried to break the grip of giant Monsanto lost a final battle Friday when Canada's Supreme Court upheld patent protection held by the company over a genetically modified form of canola.
Monsanto had won lower court judgments against Saskatchewan farmer Percy Schmeiser on the grounds that he had grown its canola in his fields without a license. The grain, used for feed and cooking oil, has been modified to resist Monsanto’s herbicide Roundup.
The court battle had pitted environmentalists, anti-corporate activists and some farmers against the biotech industry and other farmers who argued that research for grains used in Canada would dry up if not patent-protected.
“By cultivating a plant containing the patented gene and composed of the patented cells without license, the appellants thus deprived Monsanto of the full enjoyment of its monopoly,” the high court ruled by a vote of 5-4.
Court: 'Not an innocent bystander'
Schmeiser had insisted that he was an innocent bystander whose life’s work was ruined by Monsanto. He said Roundup Ready canola plants found on his field must have come from seeds that blew in from the neighbors or from passing trucks.
Monsanto said independent tests of his farm found that 1,030 acres were 95 percent to 98 percent tolerant to Roundup — a level contested by Schmeiser.
The company’s position was that regardless of how the seeds came to be on his field, Schmeiser ignored warnings from its agent not to replant the seeds the next season.
“Mr. Schmeiser was not an innocent bystander; rather he actively cultivated Roundup Ready Canola,” the court wrote, ordering him to return Roundup Ready seeds and not to deal with the seeds.
Canola has become big business in Canada and fields across the Prairies gleam bright yellow with it.
Nine out of 10 canola farmers now use Roundup Ready canola or other forms of the grain that tolerate herbicides. Such herbicides kill competing weeds but the canola is left unaffected, increasing the farmer’s crop yield.
Lego analogy used
In 2002, in what was known as the Harvard Mouse case, the Supreme Court of Canada denied Harvard University the right to patent a mouse that was more susceptible to cancer, despite U.S. and Japanese decisions to grant it patent protection.
The court decided then that “higher life forms” could not be patented. It agreed on Friday that plants were higher life forms, but it said that it was the genes and cells in Roundup Ready canola that were patentable.
But the effect is that anyone using the plant without a Monsanto license would be violating the patent. The court drew the analogy of a toy house built with Lego blocks. If only the Lego blocks were patented, one could still find the house as a whole would enjoy patent protection.
Earlier this month Monsanto suspended plans to introduce Roundup Ready wheat, bowing to protests from around the world. Some wheat farmers feared they would lose their markets in Europe, Japan and elsewhere if biotech wheat were mixed with conventional wheat.
“This ruling maintains Canada as an attractive investment opportunity,” Monsanto’s Carl Casale said in a statement. “Patent protection encourages innovations that will lead to the next generation of value-added products for Canadian farmers.”