Monsanto Wins Canola Patent Case in Canadian Supreme Court

OTTAWA, Ontario, Canada, May 24, 2004 (ENS) - By a one judge margin, the Canadian Supreme Court Friday upheld a lower court ruling against a farmer who had Monsanto's genetically modified canola seeds in his field.

In a case that was closely watched as a bellweather for genetically modified patent rights, the court ruled 5-4 that Saskatchewan farmer Percy Schmeiser stole Monsanto's patented seed that was genetically modified to tolerate the Monsanto herbicide Roundup.

Schmeiser said the transgenic seed blew onto his property from a neighbor's field. He claimed that he did not profit from the seed, but instead it contaminated a seed variety that he had cultivated for years.

Canadian farmer Percy Schmeiser lost the case, but will not have to pay money damages to Monsanto. (Photo courtesy Percy Schmeiser)

Monsanto Canada said it was satisfied with the court's ruling. "We are gratified the Supreme Court of Canada found that Monsanto's patent pertaining to the Roundup Ready gene is valid and enforceable," said Carl Casale, executive vice-president, Monsanto Company.

"The Supreme Court has set a world standard in intellectual property protection and this ruling maintains Canada as an attractive investment opportunity," Casale said. "Patent protection encourages innovations that will lead to the next generation of value-added products for Canadian farmers."

Schmeiser called the ruling "a personal victory" even though it went against him. He will not have to pay Monsanto the $200,000 sought by the company.

"I do not have to pay Monsanto one cent for profits, damages, penalties, court costs or their technology use fee of $15/acre," the farmer said. "I feel good about this ruling, as I have said all along that I didn't take advantage or profit from Monsanto's technology in my fields. I am pleased that the Supreme Court felt that way as well.

"It has been my position that I didn't want their technology in my fields, that I didn't use their technology by spraying, didn't sell their technology as seed to another farmer and didn't earn any profit from it," said Schmeiser. "I felt it hard to accept that I should have to pay them for it."

The Supreme Court upheld the March 29, 2001 judgment handed down by Justice Andrew MacKay of the Federal Court of Canada. Justice MacKay ruled that Schmeiser "knew or should have known" that he planted Monsanto's patented seed.

Schmeiser said that at the time he did not know that anyone held a patent on the canola.

"All I did was save my seed from year to year," Schmeiser said. "Now it is clear that a company's patent will take precedence over the rights of farmer's to save and reuse their seed." This is a conflict between plants breeder's rights and patent law and it is an issue for Parliament and the government to sort out, Schmeiser said.

The ruling enjoins Schmeiser and employees of Schmeiser Enterprises from planting, growing, cultivating, harvesting, selling, marketing or distributing the patented technology in the future. Schmeiser must also give Monsanto any seed he still possesses that contains the Roundup Ready gene.

Monsanto's genetically modified Roundup Ready canola (Photo courtesy Monsanto)

The company will now have to prove that a farmer profited from having Roundup Ready (RR) canola in their fields.

"The Court noted that my profits were the same whether I had conventional canola or RR canola, so I find it hard to see how Monsanto can say in any future case that the farmer made more money because of their product. This decision may have removed the 'teeth' from their patent."

Schmeiser said he believes Monsanto will face "huge liability issues" in the future and expects more lawsuits will be filed against the company for the contamination of farmer's fields.

"I was always concerned about this lack of responsibility that Monsanto took for the unconfined release of RR canola in western Canada. I think the Court's decision will force them to be held accountable for it now," the farmer said.

Monsanto called the ruling good news for farmers and for all Canadians. "More than 30,000 Canadian farmers have chosen our technology because of the economic and environmental benefits it brings," said Casale. "We believe the Supreme Court of Canada decision is good news for farmers and Canadians, all of who benefit from the innovative work that is going on across the country to produce more abundant, high quality food."

Schmeiser said he will continue his support of farmers who want to save and replant their own seeds. "This is what I have been doing for the last 50 years," he said. "I will continue to support any efforts to strengthen the rights of a farmer to save and re-use his own seed."