[Pirateninfo] Fw: Observations on the Supreme Court hearing of Percy Schmeiser

[Martin Sundermann]

>Farm News from Cropchoice
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>
>
>2/2/2004
>Observations on the Supreme Court hearing of Percy Schmeiser
>-------------------------------------------
>
>by E. Ann Clark, Ph.D.
>
>Department of Plant Agriculture
>
>University of Guelph (eaclark at uoguelph.ca)
>
>(Monday, Feb. 2, 2004 -- CropChoice guest commentary) -- I am not easy to
>impress, but young Terry Zakreski, the lawyer representing Saskatchewan
>farmer Percy Schmeiser, made an argument before the Supreme Court of
>Canada [Jan. 20, 2004] that was nothing short of brilliant. Not only was
>it original, with razor-sharp logic, but the delivery was calm, focused,
>deliberate, and articulate.
>
>Picture the scene.  The nine Supreme Court judges, resplendent in their
>red robes, file in and take their places at the far end of the room. The
>tall, slender, pale lawyer from Saskatoon sits alone on the Appellant’s
>(Schmeiser) side of the aisle, flanked by three lawyers for the Respondent
>(Monsanto) across the aisle.  Behind Zakreski are 2 pairs of lawyers and a
>whole lot of vacant seats.  The pairs represent two sets of Interveners
>supporting Schmeiser’s position: first, a consortium of 6 NGOs (Council of
>Canadians, Action Group on Erosion, Technology, and Concentration, Sierra
>Club, National Farmers Union, Research Foundation for Science, Technology
>and Ecology, and the International Center for Technology Assessment), and
>second, the Attorney General for Ontario.  Stacked up behind the Monsanto
>contingent are a bevy of two or three lawyers for each of the other
>Interveners granted permission to speak in support of Monsanto’s
>position - the Canola Council of Canada, BIOTECanada, and the Canadian
>Seed Trade Association.  The audience at the back of the courtroom is
>limited to 50 hardy souls, most of whom have braved hours of truly
>bone-chilling conditions on the steps of the Supreme Court to ensure a
>place at the proceedings.
>
>Conduct is formalized, with the Appellant and Respondent each accorded one
>hour to make their case, while the five Interveners are given from 7.5 to
>15 minutes each.  The Judges are free to interrupt at any time to
>challenge the lawyers.  The Appellant has 5 minutes to rebut.  It is all
>over by 1PM, when the judges retire to deliberate.
>
>When he rises to face the Supreme Court of Canada, Zakreski presents a
>three-fold argument.
>
>1.  The actual wording of Monsanto’s Patent ‘830, entitled
>“Glyphosate-Resistant Plants” consists of 52 claims encompassing various
>aspects of the RR gene itself and the RR cells that result from inserting
>the gene.  But most critically, Monsanto’s patent makes no reference to
>seeds, plants, or crops.  Thus, although its actual patent ends at the
>cell, Monsanto has chosen to commercialize its patent rights at the level
>of seeds, plants, and indeed, whole crop fields.  Paraphrasing from
>Zakreski’s argument, while Monsanto says that they don’t own Canada, they
>nonetheless claim every province and territory in Canada.
>
>This is a critical distinction, because a seed or a plant is a higher life
>form, and in its ground-breaking Harvard Mouse (“oncomouse”) Decision last
>year, this very same Court had ruled that higher life forms could not be
>patented in Canada.  Zakreski cited other evidence
>showing that the Patent Act was never intended to apply to seeds or
>plants, which instead are covered under the Plant Breeder’s Rights Act.
>
>Thus, in order to support Monsanto’s patent infringement claim against
>Schmeiser, the Court would necessarily have to conclude that seeds and
>plants - higher life forms - are subject to the Patent Act, directly
>contravening both their own decision on the Harvard oncomouse case and the
>wording of the Patent Act itself.  A finding against Monsanto’s claim
>would not deny Monsanto, or indeed, the biotech industry, their lawful
>patent rights.  But it would affirm that patent rights are as actually
>worded in the patent - no more, and no less.
>
>Either way, the ruling of the Supreme Court will not affect the provisions
>of the Plant Breeders Rights Act, which has been and will continue to be
>the dominant vehicle for protecting the intellectual property rights of
>innovative plant breeders in Canada.  Paraphrasing again from Zakreski’s
>closing statement, it is not Schmeiser’s fault that Monsanto chose to
>protect its intellectual property inappropriately, under the Patent Act,
>instead of using the Plant Breeders Rights Act as it was intended.
>
>2.  The Patent Act gives rights over the “making, constructing, and using”
>of an “invention and selling it to others to be used”.  Infringement
>occurs when someone makes, constructs, or uses a patented invention for
>sale, without the permission of the patent owner.
>
>Yet, Schmeiser never made, constructed, used, or sold the RR gene.  He
>grew a 1030 ac canola crop in 1998, of which some of the plants
>inadvertently contained the RR gene.  This is the crop for which he was
>charged with patent infringement.
>
>In order to use the patented RR gene, Schmeiser would have to have sprayed
>Roundup on his 1030 ac crop - which he did not do.  The RR gene confers
>only one trait - tolerance to Roundup - a trait of relevance only when the
>herbicide Roundup is actually sprayed.  Quoting from an
>earlier court decision, “The uncontradicted evidence of Mr. Schmeiser is
>that he did not spray Roundup on his 1998 canola crop” (Para. 29, Court of
>Appeal).  Not only did Schmeiser make this statement, but he also
>presented to the lower court receipts showing that he had purchased his
>normal complement of herbicides in 1998.  Monsanto presented no evidence
>that he had purchased or applied Roundup to the 1998 crop.
>
>Zakreski argued that simply growing RR-contaminated plants for sale as
>grain - as done by Schmeiser - did not engage the utility of Patent ‘830",
>because “the gene neither caused Mr. Schmeiser’s plants to grow, nor to
>grow differently or better.  The gene added no value at time of sale.”
>Indeed, as shown by recent market trends, the presence of GM traits
>actually reduces the value of Canadian canola.   Zakreski also noted that
>the rights granted by Parliament under the Patent Act do not pertain to
>the simple presence or handling of an invention, but rather, to the
>exploitation or utility of the invention.  Thus, because Schmeiser did not
>use the patented gene, he did not infringe on Monsanto’s patent.
>
>3.  The uncontainability of GM traits, as acknowledged by Monsanto experts
>in lower court proceedings, ensured off-site contamination of fields not
>under contract to Monsanto.  Aaron Mitchell, the Biotechnology manager for
>Monsanto Canada, stated that “Monsanto always
>expected that fields of its genetically modified canola would
>cross-pollinate with fields of regular canola” (AR Vol. IV, p.600
>(20-30)).  Zakreski presented numerous examples to substantiate Monsanto’s
>expectation of uncontrollable contamination from its RR canola.
>
>In this particular case, a local RR-canola grower testified in lower court
>that while hauling his grain to market past Schmeiser’s fields in 1997, a
>tarp came loose and “acted like a cyclone” releasing considerable seed
>into Schmeiser’s adjoining fields (AR Vol. VI. pp. 1132-5).   Wind-blown
>swaths from adjoining RR-canola fields landing on Schmeiser land were also
>acknowledged by the lower court judge.  Because Schmeiser saves his own
>seed for replanting, the contamination carried into his next year’s crop -
>for which patent infringement was alleged. Thus, the initial sources of
>contamination were an inadvertent but nonetheless unavoidable result of
>normal farm practice.
>
>The degree of contamination in the 1998 crop is in dispute, with Monsanto’
>s figures showing 95-98%, with a value for each of 27 in-field samples.
>Yet, the same samples, analyzed at the University of Manitoba, showed
>0-68% contamination, with some samples sufficiently degraded as to be
>unmeasurable.
>
>If the simple presence of RR plants in a field is enough to constitute
>patent infringement, then most Western Canadian farmers would be patent
>infringers - albeit innocent bystanders or passive recipients of unwanted
>and unwelcome RR genes.  Accordingly, Zakreski argued that to sustain
>rights over their own property, farmers should be granted a waiver or
>implied license to allow them to save and re-use their own seed - a lawful
>and traditional use of agricultural property on the Schmeiser farm -
>regardless of contamination which they could not control anyway.
>
>He further argued that it was wrong to award the full value of Schmeiser’s
>crop to Monsanto simply because the gene was found on his farm, given that
>he had not benefitted in any way from the contamination, and indeed, could
>not have prevented it.
>
>To illustrate the unworkability of awarding the full value of the crop to
>the owner of a patented, contaminating gene, Zakreski presented the
>hypothetical but entirely plausible example of a farmer whose canola was
>inadvertently contaminated by two different genes, perhaps from two
>different neighbors.  Would the owner of each patented gene be entitled to
>the full value of the crop?  In other words, would the farmer have to pay
>each patent owner 100% of the value of his crop?
>
>When Zakreski resumed his seat, the atmosphere of the silent, dignified
>chambers was positively electric.  May his arguments be as powerful and
>compelling to the judges of the Supreme Court of Canada as they were to
>me.
>
>
>
>
>-------------------------------------------
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