Authors: Greg Lynch and Jared Scarlett

Introduction

A case, which has featured prominently in the press of recent months, is the Canadian case of Monsanto v Schmeiser. The case evolves around a Canadian farmer, Percy Schmeiser, who claimed that his commercial crop of canola had become inadvertently contaminated by Monsanto's genetically modified canola "Roundup Ready Canola". Mr Schmeiser retained a portion of his 1997 crop to use as seed for his 1998 crop. This 1998 crop was found to have a very high proportion of Roundup Ready Canola, and he was subsequently prosecuted by Monsanto for using the patented seed without a licence.

Anti-GM lobby
Even before a judgment in this case had been given, the anti GM-lobby were holding up Percy Schmeiser as a typical example of the "poor" farmer who was at the mercy of large multi-national companies, and an example of the evils that GM technology will bring. The anti-GM lobby even brought Mr Schmeiser to New Zealand to appear before the Royal Commission on genetic modification.

However, earlier this year the Canadian Court found that Percy Schmeiser had infringed the Monsanto patent by planting the 1998 crop, knowing that it contained the Roundup Ready Canola. This subsequently led to an outcry by the anti-GM network. It implied, they said, that farmers would now be liable if their crops are contaminated by patented genetically modified plants, even if that contamination occurred simply via pollen drift. However, this is not an entirely accurate interpretation of the Schmeiser case.

Licensing
Monsanto holds a patent in many countries entitled "Glyphosphate-Resistant Plants". The patent relates to plants genetically engineered to make them resistant to glyphosphate herbicides such as Monsanto's Roundup ® . Monsanto licenses commercial seed growers to grow the Roundup Ready Canola for seed purposes. A canola grower must be certified to use Roundup Ready Canola seeds, by signing a "technology use" agreement. Under this agreement, the grower can use the seed for planting only one crop, and that crop must be sold to a commercial purchaser authorised by Monsanto. The grower undertakes not to sell or give the seed to any other third party and not to save the seed for their own replanting or inventory. This agreement must be signed before the grower can purchase the seed.

Mr Schmeiser's 1997 and 1998 Crops
In 1997 Mr Schmeiser testified that he planted his canola crop with seed saved from 1996. Canola found to be Roundup-resistant was first noticed in Mr Schmeiser's crop in 1997, when he hand-sprayed Roundup® around power poles and in ditches along the road bordering some of his fields. The spraying was part of his regular farming practice to kill weeds and control plants. Several days after the spraying, Mr Schmeiser noticed that a large proportion of the canola plants earlier sprayed by hand had survived the spraying with Roundup® .

Mr Schmeiser then testified that he sprayed Roundup® on a section of a field and a strip along the road. After several days, according to Mr Schmeiser, approximately 60% of the plants sprayed earlier had persisted and continued to grow. Mr Schmeiser testified that these plants grew in clumps, which were thickest near the road and began to thin as one moved further into the field. Mr Schmeiser later retained the seed from this field for planting his 1998 crop. This 1998 crop was later found to be almost 100% resistant to Roundup®.

Mr Schmeiser's claim was that his canola became contaminated via windblown pollen or dropped seeds of the Roundup Ready Canola which Monsanto had intentionally released into the environment.

The Judgment

After deciding that Monsanto's patent was valid, the Judge found that Mr Schmeiser had infringed Monsanto's patent in his 1998 crop because he had planted canola seed saved from his 1997 crop.

The Judge explicitly stated that the infringement did not arise simply from occasional or limited contamination of Mr Schmeiser's Roundup® susceptible canola by plants that are Roundup® resistant. Rather, he planted his 1998 crop with seed that he knew or ought to have known was Roundup® tolerant. Because Mr Schmeiser had not signed a licence agreement with Monsanto, he was found to be infringing the patent.

The Judge also stated that he was persuaded by expert evidence, that on the balance of probabilities, none of the suggested possible sources of contamination of Mr Schmeiser's crop was responsible for the substantial level of Roundup Ready Canola growing in his original 1997 crop. However, the Judge did not consider the source of the Roundup Resistant Canola in the 1997 crop to be significant for the resolution of the issue of infringement. It appears to be this comment on which the anti-GM lobby has based its claims that farmers in the future would now be liable for any accidental contamination with a protected plant variety.

However, it is important to note that another factor that probably influenced the Judge's decision was that other farmers who had found Roundup® tolerant plants in their fields were proactive and had contacted Monsanto. Monsanto subsequently removed all of the undesired plants at its own expense.

Therefore, the Judge's decision that Mr Schmeiser had infringed the patent was not based on the fact that his crop had simply become contaminated with Roundup Ready Canola. Rather, despite knowing that his crop contained the patented Roundup Ready Canola, and having other options open to him for removal of the offending plants, Mr Schmeiser continued to use his seed knowingly taking advantage of the patented technology.

This is a general summary only and should not be taken as a substitute for specific advice.

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