Unnatural_Acts/Questions_over_Schmeiser's_Ruling

[Guest guest]

Multinational corporations are really trying to

monopolize and control all aspects of business and

life. They want you to work at a job with low wages.

Shop at stores that are multinationals. Get all your

energy needs from one. Get healthcare and take

medicines from one and now they want to " own " the most

basic things in a society like food and water. Welcome

to the future. F.

 

 

> Subject:

>

GMW:_Unnatural_Acts/Questions_over_Schmeiser's_Ruling

> " GM_WATCH " <info

> Mon, 19 Jul 2004 19:43:42 +0100

 

>

> GM WATCH daily

> http://www.gmwatch.org

> ------

> " If we are in a moment when governments are ceding

> much of [their] power to other monopolistic

> entities, whether in war, medicine, manufacturing or

> agriculture, we should make sure we have the chance

> to debate openly our desire to retain the

> not-always-efficient rights of citizenship in an

> apparently fast-emerging corporate order. The

> Monsanto case was reported on the business page of

> only a few newspapers in the United States. It ought

> to be of major political concern for us all. " (item

> 1)

>

> Item 2 is one of Lim Li Ching's characteristically

> brilliant summaries of almost everything worth

> knowing, or in this case asking, about an issue:

> 1.Unnatural Acts

> 2.Questions over Schmeiser's Ruling

> ------

> 1.Unnatural Acts

> by Patricia J. Williams

> The Nation, 24 June 2004

>

http://www.thenation.com/doc.mhtml?i=20040712 & s=williams

>

> ...A recent decision by the Supreme Court of Canada

> has sent tremors through the legal community for

> precisely such revolutionary implications. In

> Monsanto Canada Inc. v. Schmeiser, the justices set

> a global precedent by granting broad proprietary

> rights in a living organism--and its progeny.

>

> ...Schmeiser... had never purchased seeds from

> Monsanto; he simply found the plants growing on his

> land, either because the seed had blown in from

> neighboring farms or been dropped by passing trucks.

> Nevertheless, the court upheld Monsanto's claims of

> patent infringement and required Schmeiser to pay a

> licensing fee and hand over any remaining seeds in

> his possession. " The patented genes and cells are

> not merely a 'part' of the plant, " ruled the court,

> but extend to the " entire physical structure "

> including subsequent generations of the plant.

>

> The complications of this case raise questions about

> the ethical balance we face in unsettled times. As

> in the Industrial Age, new technologies bring shifts

> in accumulated power such that surpluses or

> shortages of vital resources pit long-term common

> values against immediate self-interest. The Monsanto

> case, if it's a signal of things to come, represents

> a shift from government rules that grant landowners

> power over everything that grows " naturally " upon

> it. It makes us question the balance between human

> control and the heretofore ungovernable forces we

> deemed natural. It significantly diminishes the

> legally subsidized sweat equity traditionally

> assumed when farmers planted their fields and culled

> the seeds of their crops, the fruit of their labor.

>

> Those assumptions are important because they so

> profoundly define us. We need to have a much more

> mainstream conversation about this radical dimension

> of new and emerging property notions. What does it

> mean to own the processes of biological reproduction

> so completely? What standing does citizenry have

> against or in addition to the interests of private

> parties to particular contracts? Has the value of

> physically taming nature (i.e., farming) become

> utterly subservient to the microengineered taming of

> nature (i.e., research and development in a

> laboratory)? Does this reassignment of value and

> agency create a global monopoly of food production,

> wide as fish may swim or wind may blow? Is there a

> remediable property loss beyond what will be

> litigated in now-privatized licensing cases? Does

> this newest frontier ultimately destabilize the

> notion of a work ethic ennobled by physical

> labor--the very premise of our current free

> enterprise system--and replace it with the

> definitive dominance of knowledge elites? The common

> man becomes rather too literally encumbered by

> hoarded genetic endowments.

>

> Of course, these are not new tropes, but it is in

> transformative times like these that we see how much

> of what we think of as the freedom of nature is in

> fact a comfortable fiction insured by collectively

> reasoned (and therefore deemed fair) allocations and

> distributions of government-held power. If we are in

> a moment when governments are ceding much of that

> power to other monopolistic entities, whether in

> war, medicine, manufacturing or agriculture, we

> should make sure we have the chance to debate openly

> our desire to retain the not-always-efficient rights

> of citizenship in an apparently fast-emerging

> corporate order. The Monsanto case was reported on

> the business page of only a few newspapers in the

> United States. It ought to be of major political

> concern for us all.

> ------

> 2.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 of membership 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). 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). 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.

>

>