Monsanto wins right to genetic pollution

Feature story - May 21, 2004
After years of fighting against bio-tech giant Monsanto, Percy Shmeiser, a Canadian farmer who Monsanto claims did not acquire a licence to grow his crop of canola, has lost his appeal in the Supreme Court of Canada.

Monsanto took Percy Shmeiser to court because their crop contaminated his field.

In a 5-4 decision, the Canadian Supreme Court held that Mr. Schmeiser had violated Monsanto's patent by planting seed from GE canola that had been found on his farm the previous year.

"This is a sad day for farmers worldwide," said Pat Venditti, our Genetic Engineering campaigner in Canada. "Monsanto's canola has been contaminating the fields of Western Canada for years now, as there is no way to contain their transgenic pollution. Unfortunately, the Court has held that Monsanto can keep polluting farmers' fields and keep menacing them with costly lawsuits. Farmers should be able to keep their fields GE-free, but the Court has held that's a decision best left to Monsanto."

In 1997, Schmeiser discovered, while routinely spraying herbicide along a ditch, that some of his canola plants had become herbicide-resistant - contaminated by pollen from Monsanto's patented herbicide-resistant canola.

In August 1998, Monsanto launched a lawsuit against Schmeiser for patent infringement, alleging that Schmeiser had acquired and planted seeds containing patented genes without a license, and then sold harvested seed, thus infringing the company's patent. Mr. Schmeiser has become a globally known figure during his long legal battle with Monsanto.

Three main issues were deliberated by the Canadian Supreme Court:

1)The validity and scope of genetic patents - whether or not life forms may be patented.

2) What kind of use constitutes infringement? Schmeiser argued that since he never sprayed his plants with Monsanto's Roundup, and thus never took advantage of the crop's herbicide resistance, he never benefited in any way from the presence of Monsanto's patented material in his crops. In this case, Schmeiser argued that as he did not exploit Monsanto's invention, he did not infringe Monsanto's patent.

3) The "innocent bystander" problem. Schmeiser argued that where patented material passively and inadvertently mixes with personal property, the property holder should not be held accountable to the patent holder. Instead, in such cases the innocent bystander should be protected by an implied license from the patent holder.

"Genetic contamination from genetically engineered canola is rampant," continued Mr. Venditti. "Monsanto has introduced an uncontrollable crop with no liability to farmers or the public. This ignores the widespread contamination being caused by Monsanto. The decision of the court essentially makes farmers liable to Monsanto for Monsanto's own genetic pollution. It means that Monsanto can reach into farmers' fields and steal their profits and livelihoods."

The decision follows two major setbacks for Monsanto, who announced last week they would back off on plans to commercialise GE wheat globally and GE canola in Australia after strong consumer and industry resistance to the crops. In a small win for Schmeiser, he will not be required to pay Monsanto for the seed or legal costs relating to the case.