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Monsanto Beats Farmer in Patent Fight

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  Percy Schmeiser, a farmer in Saskatchewan, infringed a patent by saving and using canola seeds, Canada's Supreme Court ruled. (Jonathan Hayward -- AP)


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Schmeiser claimed the gene-altered plants arrived on his land around 1997 uninvited, perhaps as a result of pollen blowing from a neighbor's field. Two lower courts, noting that more than half of Schmeiser's 1,030 acres bore the high-tech plants by 1998, concluded that he had infringed Monsanto's patent by saving and replanting the seeds and ordered him to pay more than $100,000 in costs and penalties.

The case took on special significance in Canada, whose Supreme Court had previously ruled that patents cannot be issued on "higher organisms," including animals and plants. The question arose: Since Monsanto's Canadian patent was only on canola genes and cells, could Schmeiser's unintentional possession of entire plants -- which cannot be patented -- constitute infringement?

Although four members of the court flatly said no, five said yes. But the court reversed the lower courts' monetary penalties against Schmeiser, saying there was no evidence he had profited from the added gene because he did not use Roundup weed killer. The court told each side to pay its own legal costs.

After he and his wife got the news yesterday morning, "we both had tears in our eyes," Schmeiser said. "But at least we still have a roof over our heads. This could have broken us financially."

Monsanto has sparked the wrath of farmers in the United States and Canada by using private detectives to investigate their fields, and a few jurisdictions have passed laws giving farmers certain rights and protections in those cases.

Some states have considered legislation that would make biotech companies liable for windblown pollen that invades fields of conventional crops, which in some cases are worth more than the engineered varieties. In Canada, organic farmers have filed a class action against Monsanto and another company for allegedly polluting their fields with gene-altered pollen.

Some legal experts said that case might be strengthened by yesterday's ruling.

"If you're going to claim ownership of this gene wherever it lands, then you ought to assume responsibility, too," said Terry Zakreski, Schmeiser's attorney in Saskatoon.

Monsanto has sued scores of farmers in both the United States and Canada. The company has said it does so only as a last resort, after settlement talks fail, and only in cases in which it believes the violations of company patents were knowing and deliberate. When the company sues, "it is not an accident," said Monsanto's Casale. "We have never lost a case."

The issue is not squeezing out "every last nickel" for Monsanto, he said, but keeping the playing field level. If a few farmers are able to use the technology free while others have to pay, the dishonest ones will gain a competitive advantage on their neighbors, he said.

"I can't tell you the number of farmers I've talked to who have said, 'I understand the value this technology brings,' " Casale said. " 'I have no problem paying for this technology. I just want to know that everybody else is paying, too.' "

But activists said they feared the precedent bode poorly for the world's subsistence farmers, who are dependent on saving seed from each year's crop to plant the next year.

"The decision has grave implications for farmers and society everywhere the gene giants do business," said Pat Mooney, executive director of ETC Group, an advocacy group that focuses on the risks of technology and had intervened in the case in Schmeiser's defense. "The decision not only undermines the rights of farmers worldwide, but also global food security and biological diversity."

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