James ParkerThe StarPhoenix

5/19/2003

Percy Schmeiser, a self-styled David in the battle over genetically modified technology, will take his struggle against Monsanto to the Supreme Court of Canada.

On Thursday, Canada's highest court gave the Bruno farmer leave to appeal a Federal Court of Appeal decision in favour of the giant U.S.-based multinational.

Monsanto sued Schmeiser for growing Roundup Ready canola in violation of the company's patent rights.

In 2000, the Federal Court of Canada ruled Schmeiser knowingly violated the patent and should pay the company nearly $175,000 in damages. Last year, three judges with the Federal Court of Appeal unanimously upheld the ruling.

Schmeiser maintains the Roundup Ready seed blew into his field from a passing truck or his crop was contaminated by pollination in 1997.

He has become a folk hero to farm and consumer activists who oppose genetically modified foods and are concerned about the growing power of multinationals. On Thursday, the 71-year-old was unavailable for comment because he was in Rome giving a speech.

Monsanto spokesperson Trish Jordan said the company was disappointed the case will proceed to the Supreme Court. No date has been set for the hearing.

"But we look forward to completing the final stage. We're confident as we can be that once the Supreme Court has a chance to review the evidence, the two previous rulings will be upheld."

Terry Zakreski, Schmeiser's lawyer, said his client will be very pleased with the Supreme Court's decision.

"Statistically, they don't give leave to than many cases. That being said, I thought it was a case that was attractive for leave because the legal issues it raises are of national importance."

Zakreski said the court will be asked to consider whether patents should be given for plant genes and plants and whether a company enforcing a patent has the right to interfere with a farmer saving and reusing seed. Farmers who sign a technology use agreement with Monsanto are not allowed to save canola seed.

Zakreski said he intends to use the controversial "Harvard Mouse" decision in arguing Schmeiser's appeal.

Last December, the court ruled Harvard University could not patent a genetically engineered mouse in Canada. In a 5-4 decision, the court decided a living mouse cannot be patented, even if the genes in its cells have been genetically modified.

The majority ruled there was a fundamental difference between "lower" and "higher" forms of life. It said Parliament, not the courts, should define what can be claimed under patent law.

"The Supreme Court found that higher life forms, such as a plant or a seed, are not patentable in Canada," said Zakreski.

"They acknowledged lower life forms would be. In our case, giving a patent over a gene granted (Monsanto) control over the plant and the seed."

Zakreski said he will argue Monsanto's patent is invalid or should be interpreted a lot more narrowly.

Martin Phillipson, a University of Saskatchewan law professor who specializes in patent law, said he was surprised the Supreme Court would hear Schmeiser's appeal.

"I don't think a canola plant or the gene falls into the category of material the Supreme Court would consider unpatentable in (the) Harvard Mouse (decision). The plant breeders rights act allows for intellectual property rights over plants already, although not patents. Unless they are really going to have a radical review, I don't think that (Monsanto's patent) will be the question they will be interested in. I think the legal question will be whether or not Percy Schmeiser used the patented technology."

However, Phillipson said there is a possibility the Supreme Court wants to take a clear look at life patents, in general. He said granting Schmeiser leave to appeal makes the situation more uncertain and will put pressure on the federal government to draw up legislation on life patents.

Stewart Wells, president of the National Farmers Union and a supporter of Schmeiser, said governments have ignored their regulatory responsibilities while acting as promoters for the biotechnology industry.

"This whole thing could have been avoided if governments attached responsibilities and liabilities to patented seed," said the Swift Current-area farmer.

"The consequences for farmers are unbelievably negative. You have a huge multinational corporation going around picking off farmers when they think they have a case.

Keith Downey, one of the researchers who helped transform the common rape plant into canola more than 25 years ago, said there will be a huge impact on biotechnology research if Schmeiser wins his appeal.

"If they overturn that, the biotech companies will not be around in Canada for very long because they won't be able to recover their investments. They will have no protection at all. This becomes very important and a matter of considerable concern."

Downey was a witness for Monsanto at Schmeiser's trial.