Biotech plants get legal test

Canada's top court may decide how far Monsanto's rights on gene patents can go.

By Mike Lee -- Bee Staff Writer

Published Wednesday, January 21, 2004

OTTAWA -- Canada's most famous farmer faced off against gene giant Monsanto before the Supreme Court of Canada on Tuesday in a case that could set the tone for the next decade of seed biotechnology.

In a packed courtroom, the nine high court judges sought to balance industry demands for strong patent laws with practical consequences, such as penalizing farmers who accidentally end up with biotech genes.

Though the court's decision is not expected for months, it will be the world's first high court ruling on gene patent infringement. As such, it will serve as a guidepost for developing countries eager for the promises of seed technology but cautious about giving giant corporations more control over food and farmers.

The case has inspired a U.S. think tank to search for a grower who can challenge the nation's biotech laws just as 73-year-old Saskatchewan farmer Percy Schmeiser has done in Canada.

Schmeiser, fined $170,000 Canadian for gene theft by lower courts in a case dating back to 1997, was seated in the gallery Tuesday. He didn't address the court -- a subtle sign of how his case has ballooned into something far bigger than one canola farmer's dispute over seeds.

Outside the cavernous courtroom, Schmeiser smiled with relief that his seven-year battle was nearly over and expressed optimism about his chances. Then, the former politician walked down the marble steps into a scrum of cameras and microphones to deliver his well-rehearsed speech about the evils of big biotechnology.

A few yards away, Ross Ravelli, president of Canada's Canola Growers Association, puzzled over why Schmeiser's extraordinary set of circumstances has received so much attention while relatively little has been said about potential benefits of biotechnology for the nation's 35,000 canola growers.

Ravelli fears that any weakening of intellectual property rights will scare seed developers away from Canada. "We don't want to stop the innovation," he said.

In many ways, the contrary views of Schmeiser and Ravelli mirrored the court dialogue.

The direct issue before the court was whether Schmeiser is guilty of gene theft for planting Monsanto's patented herbicide-resistant canola seeds in 1998 without paying the company.

Schmeiser, who's become an international hero to anti-biotech forces, says he was just following his usual method of saving canola seeds from one year to the next. The only difference in 1998 was that his crop had been tainted the year before with Monsanto's genes.

Monsanto maintains Schmeiser intentionally reproduced the special seeds -- seeds that allow farmers to spray weedkiller without hurting their crops.

Two lower courts agreed with Monsanto that a theft had occurred, regardless of how the genes got into Schmeiser's crop or whether he benefited from them. For them, a key fact was that Monsanto had warned Schmeiser about the presence of its gene in his crops before he replanted.

The high court's acceptance of Schmeiser's case caught many by surprise. But intellectual property expert Richard Gold of McGill University in Montreal said the Canadian Supreme Court may be looking to clarify its previous ruling barring patents of higher life forms. Schmeiser vs. Monsanto offered that opportunity with regard to plants.

"The object of all this is to send a clear message to industry that 'Yes, we do have DNA patents, don't worry' and to everyone else 'We understand that overly broad patents could have negative effects and we will make sure that doesn't happen,' " Gold said.

The case won't have any direct bearing on U.S. law, but it is being watched closely in California by those trying to keep genetically engineered crops from expanding.

Ripples from the case also run through U.S. wheat country, where farmers are on the verge of planting Monsanto's next herbicide-tolerant crop. If a Canadian court ruling slows the acceptance of Roundup Ready wheat in Canada, that could give Canadian wheat farmers a competitive edge with Europe's biotech-free wheat market.

Andrew Kimbrell at the International Center for Technology Assessment in Washington, D.C., said controversies such as Schmeiser's should encourage U.S. lawmakers to curb life-form patents.

Kimbrell's organization has documented 90 U.S. growers who have been sued by Monsanto for patent infringement since 1997. It is seeking a good candidate among them to test U.S. law on whether biotech companies are liable for genetic pollution.

Schmeiser lawyer Terry J. Zakreski argued in court Tuesday that Monsanto has indirectly and illegally patented a plant by claiming control over genes in that plant anywhere they end up.

"The task here is where to draw the line," Zakreski said. "Where do Monsanto's rights stop and the farmers' begin?"

Also, he said, even if Monsanto's patent were valid, Schmeiser isn't liable for damages because he didn't spray Roundup, the herbicide the gene was tailored to tolerate, on his canola crop.

"Simply growing plants that may have that gene isn't accessing that novel technology," Zakreski said.

Questions from the bench indicated interest in the implications of the unintended spread of Monsanto's genes, especially the extent to which the company itself should determine which farmers are seed bootleggers and which are innocent bystanders to gene contamination.

Some justices showed concern, however, that allowing farmers to replant patented seed could spawn countless claims of accidental contamination that, in turn, could undermine Monsanto's ability to profit from its seeds.

Justice William Ian Corneil Binnie asked whether limiting patents would leave commercial inventions on laboratory shelves.

Monsanto lawyer Roger T. Hughes assured the justices that it would hamper innovation.

But as Hughes spoke, he was pelted by questions from the bench about whether Monsanto's modified genes can be legally viewed as separate from the plants in which they grow. That line of questioning would take on added importance if the court believes that plants are excluded from patenting by its 2002 ruling on higher life forms.

Justice Binnie also questioned whether the lower courts ought to have awarded Monsanto monetary damages. "How can a trial judge ... order an accounting of profits when there is no finding that the invention profited (Schmeiser) a nickel?" he asked.

Monsanto lawyer Arthur B. Renaud said punitive damages keep farmers honest. Without them, he said, "It comes down to 'catch me if you can.' "


About the Writer The Bee's Mike Lee can be reached at (916) 321-1102 or mflee@sacbee.com.