Monsanto v. Schmeiser

A recently released feature film documentary laments the unbridled and unchecked creation, distribution and consumption of genetically modified foods, noting the problem has reached us here in Oaxaca regarding GM corn, and citing a 2004 Supreme Court of Canada decision which, so the theory goes, makes no sense whatsoever. At the conclusion of a recent Oaxaca Garden Club showing of the flick, its members were appalled by what Canada had done to exacerbate the problem, feeding into the conspiracy theory of the world oft-expounded by Sam Lowry, a former writer for a Oaxaca monthly. Alvin Starkman, a Canadian lawyer residing in Oaxaca, tries to set the record and Mr. Lowry straight.

I’ve admittedly become part of the problem by inadvertently purchasing and planting genetically modified corn on the “back 40” of my Oaxacan homestead. How was I to know? Corn at 4 pesos a kilo at the Tlacolula market just seemed like a great price. It was only in the course of watching the documentary The Future of Food that I learned that domestic corn sells for 6 – 7 pesos per kilo and that big business was dumping genetically modified corn into the Oaxacan marketplace for sale at the lesser price. But when the film informed that the Supreme Court of Canada had in 2004 decided a case in favor of American multinational Monsanto Company against Saskatchewan farmer Percy Schmeiser arising out of Schmeiser unwittingly growing Monsanto’s patented GM canola seed, I had to investigate further.

We sometimes need a reality check. The media, be it print, radio or film, are not required to be truthful. They often have a particular slant like, for example, Bill O´Reilly at Fox News, or Michael Moore in Fahrenheit 911. By contrast, courts are mandated to make findings of fact after weighing evidence, and accordingly, on balance we should trust what a judge has decided in favor of what we are otherwise told to be gospel.

The Gospel According to Saint Hollywood suggests that poor old Percy, the hard-working Western Canadian farmer, lost virtually everything by fighting Goliath and then losing…at trial, in Saskatchewan’s appellate court, and finally in the Supreme Court of Canada. The impression with which we’re left is that Monsanto produced and then had patented genetically modified canola plants, some of the seeds of which, owned by a nearby farmer, blew onto Mr. Schmeiser’s fields, resulting in Schmeiser inadvertently planting and then harvesting and selling Monsanto’s canola seed, thereby infringing upon Monsanto’s patent. It is further suggested that Western society favors big business and steps on and crushes innocent hardworking Canadians (read Americans) without valid reason, and is proceeding dangerously close to destroying mankind by allowing for the patenting of life forms. Will our bodies eventually succumb to ingesting GM foods? Will the traditional way of doing business change dramatically by Monsanto et. al. mandating that our Zapoteco peasant class pay royalty or user fees of which they know nothing so that they can continue to plant corn, their birth-rite? Worse, were the makers of the 1950’s – 60’s “C Grade” horror films onto something suggesting a ruling class of Hitler clones?

The facts of the case and Canadian patent law specifically regarding life forms are as follows, space constraints requiring that I meld into one the three court decisions. However there is consistency throughout, apart from the fact that the Supreme Court of Canada decision was a 5-4 split meaning that Schmeiser came close to winning. Does the conspiracy go so far as to make it look like Schmeiser almost won? Not only were both sides represented by excellent counsel, but no less than 11 interest groups intervened and made submissions, so that each side had additional teams of lawyers arguing for them.

Monsanto and its Canadian subsidiary sued Mr. Schmeiser and his corporation for patent infringement claiming an injunction and monetary damages. Mr. Schmeiser had been growing canola since the 1950s, part of his large scale commercial farming operation. He also had an extensive history in municipal and provincial politics and was a businessman and adventurer. Canola had for years been a valuable crop used to make edible oil and animal feed. In 1996 Monsanto obtained a patent for a gene and cell in canola seed, and thereafter began selling a license fee to farmers and seed agents for respectively use and distribution of the seed. The seed became known as Roundup Ready Canola. The emerging canola plant was resistant to Roundup, an herbicide produced by Monsanto. This meant that instead of having to wait to plant until a field had been sprayed with an herbicide to kill weeds, farmers could seed their fields at the earliest possible date in the season, and spray after the plants had emerged, knowing the herbicide would not kill their seedlings. Profits would be maximized.

Farmers under license were obliged to use the seed for planting a single crop and sell it to a commercial purchaser. They weren’t allowed to let third parties acquire their seeds or save them for replanting. While this may seem draconian or a restraint of trade, farmers saw the financial value in agreeing. In 1996 about 600 Canadian farmers planted the seed on 50,000 acres, and by 2000, about 20,000 farmers had close to 5 million acres under cultivation. This was a chapter in Western Canada’s great success story of canola growing. For many years it had been produced on a small scale, but with scientists having developed high-yield seed, canola subsequently provided the greatest annual value of all grain crops in Canada.

Monsanto spot tested cultivated acreage and found plants containing its seeds in one of Mr. Schmeiser’s fields in 1998. Mr. Schmeiser contended amongst other things that he did not intentionally plant and use the canola, alleging it must have blown onto his property from a neighbor’s field or a passing truck, and in any event such a life form is not patentable. In 1996 five of Mr. Schmeiser’s neighbors planted Monsanto’s seed under license. How this seed ended up in Percy’s fields was irrelevant. He saved seed from his 1996 harvest and used it to plant his 1997 crop. The Patent Act afforded Monsanto a remedy provided the offending party “used” the patented cells and genes.

As was his custom, to control weeds Mr. Schmeiser sprayed Roundup near power poles and in ditches. He noticed that a lot of the canola plants survived the spraying. To learn why the plants survived the spraying, he tested by spraying one of his fields with Roundup, the result being that 60% of the plants survived. At harvest time Mr. Schmeiser instructed his employee to swath and combine that field and the roadside areas. Thereafter the seed was processed and stored for use in 1998. The trial judge determined that Mr. Schmeiser knew or ought to have known that the seed he harvested in 1997, and then in 1998 used to grow and sell his canola, contained Monsanto’s patented gene and cell. What could he have done? It wasn’t his fault that others’ canola came onto his land? He could have contacted Monsanto, as a couple of other farmers had done, and demanded that the unwanted plants be removed. In the end, while the Supreme Court upheld the granting of an injunction, the damages awarded Monsanto were reduced to what Schmeiser should have paid as a licensing fee for the acreage under cultivation… $15,450 CDN.

Regarding the Defendants’ argument dealing with patentability of life forms, a patent was granted not for the canola plant, but for a particular gene and cell. While Mr. Schmeiser used the plants and seeds, it was his use of the patented genes and cells that infringed. The purpose of the patent was to provide a method of genetically transforming plant cells which causes the regenerated plants to become resistant to certain herbicides. The patent legislation required interpretation through the use of court precedents and rules of statutory construction (i.e. what is meant by “use”, “composition of matter”, etc.). The courts concluded that higher life forms such as mice (a recent case was cited) and plants were not patentable, but in these circumstances a gene and cell were. That certain life forms may be patentable was not a revolutionary recognition by the courts.

I believe that the Canadian courts did an admirable and appropriate job in this case, notwithstanding the impression the documentary seeks to leave. The Supreme Court was cognizant that it was ruling in an area full of land mines. It stated that an agricultural invention is as deserving of protection as one in mechanical science, and that since Parliament (equivalent to U.S. legislators) has not seen fit to distinguish between plant and other inventions, neither should the courts. It is not for the courts to rule on the wisdom and social utility of the genetic modification of genes and cells: “…the particular dangers of biotechnology inventions…find no support in the Patent Act as it stands today. If Parliament wishes to respond legislatively…it is free to do so.”

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