Guest guest Posted July 19, 2004 Report Share Posted July 19, 2004 > 19 Jul 2004 12:00:36 -0000 > Questions over Schmeiser’s Ruling > press-release > > > The Institute of Science in Society Science Society > Sustainability http://www.i-sis.org.uk > > General Enquiries sam Website/Mailing > List > press-release ISIS Director > m.w.ho > ======================================================== > > > ISIS Press Release 17/07/04 Questions over > Schmeiser's > Ruling Percy Schmeiser's battle with the GM giant > Monsanto > came to an end with the recent Supreme Court ruling, > but > what does it really mean? Lim Li Ching raises key > questions > > The sources for this article are posted on ISIS > members' > website http://www.i-sis.org.uk/full/QOSRFull.php. > Details > here http://www.i-sis.org.uk/membership.php. > > Schmeiser vs Monsanto The Supreme Court of Canada > has upheld > the lower courts' rulings that Percy Schmeiser > infringed > Monsanto's patent on the transgene that confers > resistance > to glyphosate herbicides such as Roundup. The > judgement, by > a narrow 5-4 margin in favour, was given on 21 May > 2004. It > marked the end of an uphill legal battle for the > Saskatchewan farmer. > > In 1998, Monsanto brought Schmeiser to court, > alleging that > he had planted and reproduced canola seeds and > plants > containing genes and cells claimed in its patent, > and had > sold the harvest, without consent or licence (see > " Schmeiser's battle for the seed " , SiS 19 > http://www.i-sis.org.uk/isisnews/sis19.php). > Schmeiser, a seed developer and seed saver, argued > in his > defence that he had merely planted his fields with > seed > saved from the previous year, and that his crops > must have > been contaminated by Roundup transgenes. > > The judge ruled in Monsanto's favour in March 2001, > finding > that Schmeiser had in 1998, planted without licence, > canola > fields with seed saved from the 1997 crop, which " he > knew, > or ought to have known " , was Roundup tolerant. The > crop, > when tested, did contain the gene and cells claimed > in > Monsanto's patent. But, " the source of the Roundup > resistant > canola. is really not significant for the resolution > of. > infringement " . Thus, a farmer whose field contains > seed or > plants originating from seed spilled or blown into > them, in > swaths from a neighbour's land or from germination > by pollen > carried by insects, birds or wind, does not have the > right > to use the patented gene, or the seed or plant it is > in, the > judge said. > > Schmeiser was ordered to pay Monsanto its court > costs and > the profit from his 1998 canola crop, amounting to > approximately Canadian $175,000. Schmeiser appealed, > but all > three judges of the Federal Court of Appeal ruled > against > him in May 2002. > > Split decision This latest appeal, brought to the > highest > court in Canada, resulted in a split decision: five > to four. > While the judges agreed that higher life forms, > including > plants, cannot be patented, the majority (by one) > found > Schmeiser guilty of patent infringement, but the > minority > held that patented genes should not grant exclusive > rights > over the plant in which it occurs. > > The judges unanimously set aside the crop profits > that > Schmeiser had been earlier ordered to pay Monsanto. > This was > because his profits were " precisely what they would > have > been had [he] planted and harvested ordinary > canola " . Nor > did he gain any advantage from the herbicide > resistant > nature of the crop, as he didn't spray Roundup to > reduce > weeds. > > Furthermore, the judges concluded that he should not > pay > Monsanto's legal bills, a considerable sum > accumulated over > the years. The 'loser' of a case is usually obliged > to > absorb the legal costs of the 'winner'. In this > case, each > party had to bear their own costs. > > These findings were a personal victory for Schmeiser > and his > wife, who had spent the last seven years and much of > their > own resources to fight their case. > > 'Expansive' patent Five of the nine judges said that > > Monsanto's patent was valid irrespective of whether > protection for the gene and cells extends to > activities > involving the plant. Although Monsanto only claims > protection for the genes and cells, " a purposive > construction of the patent claims recognizes that > the > invention will be practised in plants regenerated > from the > patented cells. " > > As the trial judge's findings that Schmeiser saved, > planted, > harvested and sold the crop containing the patented > gene and > cells were uncontested (although the original plants > came > onto his land without his intervention), the issue > was > whether this amounted to " use " of patented material. > > According to the five judges who found Schmeiser > guilty of > infringing Monsanto's patent, the acts of saving and > > planting the seed, then harvesting and selling > plants > containing the patented cells and genes, constituted > > " utilization " of the patented material. > > Furthermore, by cultivating the canola without > license, > Schmeiser was deemed to have " deprived [Monsanto] of > the > full enjoyment of the monopoly " . > > The five judges maintained that infringement does > not > require use of the gene or cell in isolation. They > also said > that Schmeiser had failed to rebut the presumption > of use, > as he had actively cultivated Roundup Ready canola > as part > of his business operations. They maintained that > infringement does not require the use of Roundup, to > account > for the " stand-by " utility of the herbicide tolerant > trait > (i.e. whether or not a farmer sprays Roundup, > cultivating > Roundup Ready canola means that the farmer may in > future > spray and benefit). > > The presence of one patented gene thus in effect > confers > control over the entire plant, something that > Monsanto > cannot actually patent. In so accepting this > " expansive " > conception of patents, the five judges seem to > contradict > their own 2002 decision, which saw the Supreme Court > ruling > that higher life forms cannot be patented in Canada > (see > " Canada rejects patents on higher life forms " , SiS > 19 > http://www.i-sis.org.uk/isisnews/sis19.php). Now, 18 > months > later, these judges ruled that higher life forms > containing > a single patented gene are effectively the property > of the > owner of the single patented gene. These two > diametrically > opposed positions are difficult to reconcile. > > Dissenting view In contrast, the four dissenting > judges used > the Supreme Court decision that plants, as higher > life > forms, are not patentable, to argue that Monsanto's > patent > claims over the transgene and cells, while valid, > should not > " grant exclusive rights over the plant and all of > its > offspring " . In short, they argued that Monsanto's > valid > claims should be solely for genetically modified > (GM) genes > and cells in the laboratory prior to regeneration, > and for > the attendant process for making the GM plant. > > Moreover, the Canadian patent explicitly limits > protection > to the transgene and the cells containing it. By not > > including whole plants, seeds or crops, the > dissenting > judges said that Monsanto had specifically > disclaimed plants > in their patent, i.e. " what is not claimed is > considered > disclaimed " . As such, one could not reasonably > expect patent > protection to be " extended to unpatentable plants > and their > offspring " . > > In the opinion of the minority, the appropriate test > for > determining " use " is whether the patentee has been > deprived > of monopoly over the use of the invention as > construed in > the claims, rather than whether the patentee was > deprived of > the commercial benefits flowing from the invention. > Applied > here, the question is whether Schmeiser had used > Monsanto's > GM cells and genes as they existed in the laboratory > prior > to differentiation and propagation, or the GM > process. Their > answer was " no " . > > The dissenting judges said that the lower courts had > erred > not only in construing the claims to extend to > plants and > seed, but also in construing " use " to include the > use of the > plant, which is explicitly disclaimed by Monsanto. > Accordingly, they argued that cultivation of plants > containing the patented gene and cell does not > constitute > infringement, neither do those plants have > " stand-by " > utility. To conclude otherwise would, in effect, > confer > patent protection on the plant. > > Uncertain implications The court, while confirming > the > validity of Monsanto's patent on the transgene and > modified > cells, did not rule on the validity of patents on > life > forms, or whether it is right or wise to genetically > modify > plants. Neither did it answer the difficult > questions about > how GMOs can be controlled once released. These > issues will > have to be addressed by Parliament. > > The 2002 Supreme Court decision that higher life > forms, such > as plants, are unpatentable still stands. Monsanto > did not > claim patent protection over a GM plant, only the > modified > genes and cells and the process for making them. > However, > the effect of this judgment is that Monsanto's > rights on a > patented gene and cells extend to the (unpatentable) > plant > in which it is found, if the alleged infringer is > judged to > have used the patent; in Schmeiser's case, by > saving, > planting, harvesting and selling in a commercial > context. > > A Canadian farmer's right to save and use seeds > generally > should not be inherently jeopardised by the > decision. Even > plant varieties protected under the Plant Breeders' > Rights > Act have an exemption, in that a " farmers' > privilege " > applies, allowing farmers to save and replant seeds > from a > protected variety, on their own farm. (However, it > does not > allow farmers to exchange or sell seeds of a > protected > variety.) > > But how the Plant Breeders' Rights Act interfaces > with the > Patent Act in the light of this decision is unclear. > Canada > has ratified the 1978 Act of the International Union > for the > Protection of New Varieties of Plants (UPOV), which > accepts > that granting a plant breeders' right on a given > variety > implies that no patent can be granted to the same > variety. > What happens when a patented gene inadvertently > lands in (or > is present in) a variety protected under the Plant > Breeders' > Rights Act, which allows farmers to save seeds from > that > protected variety? > > As canola pollen and seed are uncontainable, > Monsanto could > accuse virtually any farmer of 'infringement', > simply > because virtually every field is likely to > inadvertently > have plants bearing its patented genes. However, > contamination of plants by patented genes, by > itself, will > not automatically be patent infringement in Canada. > For the > issue in Schmeiser's case was not the adventitious > arrival > of Monsanto's GM canola on his land. (The majority > emphasized they were not considering the innocent > discovery > by farmers of " blow-by " plants.) Rather, what were > pivotal > were the acts of sowing and cultivation, so the > conduct of > farmers on discovering unwanted GM crops in their > fields > will be crucial. > > Will saving and planting seed containing a patented > gene > without authorisation then be illegal? Perhaps, yes, > if a > farmer saves and reuses seed they know to be > contaminated by > a patented gene, instead of informing the company. > Perhaps, > no, if a farmer is able to rebut the presumption of > use > arising from possession by showing that they never > intended > to cultivate plants containing the patented material > (e.g. > quickly arranging for its removal). They could prove > that > the presence of patented genes was accidental, by > showing > that its concentration is consistent with that > expected from > unsolicited " blow-by " plants. > > But, what concentrations are judged as attributable > to > " blow-by " plants? The decision is silent on this. > Why does > the burden of monitoring and reporting fall on the > farmer? > The judgement forces everyone who does not sign a > technology-use agreement to accept responsibility > for > identifying contaminants and reporting them. Failure > to do > so incurs liability, as it did for Schmeiser. What > about a > plant that has more than one inadvertent patented > gene? Such > plants already exist. Will farmers now have to > report for > every crop, every company and every patented gene? > > Furthermore, as the dissenting judges point out, it > would be > difficult for a farmer to rebut the presumption of > use once > they become aware that a plant containing patented > genes was > present - or likely to be present - on their land > and > continued to practice traditional farming methods, > such as > saving seed (as Schmeiser had done). They > recommended that > the complexities and nuances of " innocent bystander > protection " in the context of GM crops be urgently > considered by Parliament. > > If a single contamination event contaminates > self-saved > seed, does this make the seed saver a permanent > infringer? > Prof. Ann Clark of Guelph University proposes that > the only > way to resolve this liability may be to destroy all > the seed > as one cannot distinguish contaminated from > uncontaminated > seed without spraying Roundup (in the case of > herbicide > tolerant genes), which itself kills uncontaminated > seed. But > then, who should bear the costs? > > What about contaminated certified seed? Companies > already > recognize that it is impossible to segregate GM from > non-GM > seed and contamination has been found in certified > seed > stocks. Who is liable when GM seed arrives in a bag > of non- > GM seed? > > What about patented genes and marker genes that are > not > genetically modified? Marker-assisted breeding could > > identify genes for various traits, for example, > drought or > salt tolerance, which exist naturally in local > varieties. > And once identified, these markers could be > patented. Does > the Schmeiser judgement mean that local varieties, > selected > through conventional plant breeding and including > the work > of generations of farmers and seed savers, would > also come > under the control of the patent holder of a gene, > genetically modified or otherwise? > > The flip side, Monsanto's responsibility for its > uncontainable technology, was not considered. Is > Monsanto > liable for contaminating the farmers' fields? Can > the > companies be held accountable for their technology? > The > decision says nothing about these issues. > > Already the Saskatchewan Organic Directorate's > Organic > Agriculture Protection Fund has supported certified > organic > farmers in taking legal action to impose > responsibility and > hold biotech companies liable, for their patented > genes. > They are seeking compensation for damages caused by > contamination of certified organic crops by > Monsanto's and > Bayer's herbicide tolerant canola, clean-up costs, > and an > injunction to prevent commercialization of Roundup > Ready > wheat if Monsanto tries to reintroduce it. This case > is > pending. > > It seems that the Schmeiser judgement has raised > more > questions than it answers, and by not addressing the > full > implications of the uncontainability of patented > genes, the > judges have missed the point, and proliferated more > confusion. > > Some positives The fact that the court found that > Monsanto > was owed none of the value of Schmeiser's crop may, > however, > be an important counter to the finding of patent > infringement. Growing and re-growing contaminated > seed may > not oblige a farmer to pay Monsanto anything, > presuming that > they are not benefiting from the herbicide tolerant > gene by > spraying Roundup. The company now has nothing to > gain by > taking such a farmer to court, so in effect, > Monsanto's > 'expansive' patent may have lost some teeth against > seed > savers. > > Monsanto had, in the past, threatened financial > reprisals > against farmers for alleged patent infringement. > Knowing > that contamination is unavoidable, wary farmers > might have > been persuaded to buy Monsanto's seed to avoid such > charges. > The present ruling that the company was owed nothing > of > Schmeiser's crop might make Monsanto think again > before > using such a strategy of intimidation to expand its > market. > > Significantly, the case has exposed Monsanto's > unacceptable > and unnecessary behaviour toward Schmeiser and other > > farmers. As Ann Clark points out, the other two > companies > (Bayer and Pioneer) that market herbicide tolerant > canola in > Canada do not resort to the Patent Act to protect > their > intellectual property nor prosecute farmers whose > fields are > inadvertently contaminated with their patented > genes. The > dissenting judges also noted that Monsanto in any > case > licenses the sale of seeds produced from the > patented > invention and imposes contractual obligations (e.g. > prohibiting seed saving) on the licensee. > > Schmeiser raised awareness globally on many issues - > GM crop > contamination, patents over living organisms, the > need to > protect farmers' rights, and corporate control of > our food > and agriculture. He says, " This ruling is an > injustice " , and > many agree with him. The struggle now moves from the > courts > to the political arena. The tide may yet turn. > > > > > ======================================================== > > This article can be found on the I-SIS website at > http://www.i-sis.org.uk/QOSR.php > > > > If you like this original article from the Institute > of > Science in Society, and would like to continue > receiving > articles of this calibre, please consider making a > donation > or purchase on our website > > http://www.i-sis.org.uk/donations. > > ISIS is an independent, not-for-profit organisation > dedicated to providing critical public information > on > cutting edge science, and to promoting social > accountability > and ecological sustainability in science. > > If you would prefer to receive future mailings as > HTML > please let us know. If you would like to be removed > from our > mailing list at > > http://www.i-sis.org.uk/mailinglist/.php > ======================================================== > > CONTACT DETAILS > > The Institute of Science in Society, PO Box 32097, > London > NW1 OXR > > telephone: [44 20 8643 0681] [44 20 7383 3376] > [44 20 > 7272 5636] > > General Enquiries sam Website/Mailing > List > press-release ISIS Director > m.w.ho > > MATERIAL IN THIS EMAIL MAY BE REPRODUCED IN ANY FORM > WITHOUT > PERMISSION, ON CONDITION THAT IT IS ACCREDITED > ACCORDINGLY > AND CONTAINS A LINK TO http://www.i-sis.org.uk/ > > > Quote Link to comment Share on other sites More sharing options...
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