GM canola on the prairie: Gene patents, farmers rights

On 20 January 2004, the Supreme Court of Canada heard an appeal by Percy Schmeiser, a 73 year old canola farmer from Bruno, Saskatchewan, against findings that he had infringed the patents of the biotechnology company Monsanto. The matter raises important questions about gene patents, innocent infringement, and farmers’ rights. Are biological inventions patentable – like mechanical inventions? Can an innocent bystander be held liable for infringing a patent? Should farmers’ privileges to save seed trump patent rights and technology user agreements? The case concerns a Canadian patent granted to Monsanto in 1993 for an invention named “Glyphosate-Resistant Plants”. The patent was for “man-made genetically engineered genes, and cells containing those genes which, when inserted in plants, in this canola, make those plants resistant to glyphosate herbicides” such as Monsanto’s product Roundup Ready. In 1997, Monsanto sent private investigators – ex-Mounted Policemen – to take samples from the canola farm of Percy Schmeiser. It claimed that the farmer planted glyphosate-resistant seeds to grow a crop of GM canola, for harvest. It claimed that Schmeiser used, reproduced, and created genes, cells, plants and seeds containing the genes and cells claimed in the patent. Both the Federal Court and the Full Federal Court held that Percy Schmeiser knew or should have known that those plants were glyphosate resistant when he saved their seeds in 1997 and planted those seeds the following year. It was the cultivation, harvest and sale of the 1998 crop that made Percy Schmeiser vulnerable to Monsanto’s infringement claim. As a result of the decision, Schmeiser owed Monsanto about $140,000 in judgments. He also had to pay substantial legal fees of $230,000. He has rented out all but 140 acres of his farm. Monsanto has placed a lien against the house and farm of Schmeiser. As a result, the farmer has raised funds from donations by supporters to help fight the considerable costs of his legal battles. Percy Schmeiser was supported by a group of six NGOs – including the Council of Canadians, the Sierra Club, and the International Center for Technology Assessment. Monsanto was supported by the Canadian Seed Trade Association, the Canadian Canola Growers Association, and the industry group BIOTECanada. The provincial government of Ontario was also a party to the case because of its concerns about the impact of gene patents on biomedical research and health care. The provincial government has taken a strong interest in the topic since it was sued by the Utah biotechnology company, Myriad Genetics, for infringement of the company’s patents on genetic tests for breast and ovarian cancer. The Supreme Court of Canada will have to consider a complex array of issues surrounding gene patents, innocent infringement, and farmers’ rights. There are three main areas of dispute. First, the court will consider whether Monsanto’s patent on “Glyphosate-Resistant Plants” is valid given the prohibition on patenting high life forms in Canada. Second, the Supreme Court will evaluate whether Percy Schmeiser infringed the patent of Monsanto by having a patented GM canola crop on his land. Third, the court will consider the defence of Schmeiser that he is permitted under law to save and reuse seed. I will examine each of these issues in turn