Issue 221: June 2004


 Court Confusion

The Supreme Court of Canada ruling in the case of Monsanto Canada v. Percy Schmeiser was delivered on May 21 st . The 5-4 decision puts the issue squarely before Parliament, where it belongs. The Court's decision not to award Monsanto either costs or damages, as was done in the lower courts, was unanimous (and welcome). The split came over the issue of the patenting of plants. While all agreed that higher life forms, including plants, cannot be patented, the dissenting opinion held that patented processes and genes did not convey a de facto patent on the plant while the majority held that it did.

A careful reading of the entire judgement is not demanding, but it is disturbing. To my non-legal mind, it appears that the majority opinion expresses a rather abysmal ignorance of biology. The argument is cast entirely in 19 th or 20 th century mechanical terms, such as reference to zippers and lego blocks. The majority opinion takes no notice of the self-replicating character of life forms. Nor does it appear to recognize that canola plants have, of necessity, the same growth and reproductive processes whether or not they have been genetically engineered to contain the RR ready genetic construct. The majority opinion virtually attributes the growth and reproduction of Schmeiser's canola to Monsanto's transgene.

Oddly, while the court did not award damages to Monsanto on the grounds that Schmeiser gained absolutely nothing by the “use” of Monsanto's patents, it nevertheless claimed infringement of the patent. While denying the possibility of patenting plants on the grounds that they are “higher life forms,” which was decisively ruled out by the judgement of the same court in the Harvard oncomouse case in 2002, in the Schmeiser case the majority opinion nevertheless held that because Monsanto has legitimate patents on both the transformation process and the genetic construct that is replicated throughout the plant, “use” of the plant – growing it – violates Monsanto's patents. According to my common sense, this amounts to de facto recognition of a patent on the whole plant.

As the court put it, “By cultivating a plant containing the patented gene and composed of the patented cells without license, the appellants [Schmeiser] deprived the respondents [Monsanto] of the full enjoyment of the monopoly.”

This argument is more detailed in paragraph #42:

“In [this] case, the patented genes and cells are not merely a ‘part' of the plant; rather, the patented genes are present throughout the genetically modified plant and the patented cells compose its entire physical structure. In that sense, the cells are somewhat analogous to lego blocks. . . The Lego structure could not exist independently of the patented blocks. . .”

In other words, the court in its majority opinion is stating that canola did not and cannot exist without Monsanto's patented genetic constructs and transformation process. Which is obviously sheer nonsense that can only be argued on the grounds of biological ignorance.

The bias that permits such an argument is spelled out in paragraph #90, probably the most dangerous paragraph in the whole judgement:

“The appellants' argument also ignores the role human beings play in agricultural propagation. Farming is a commercial enterprise in which farmers sow and cultivate the plants which prove most efficient and profitable. Plant science has been with us since long before

Mendel. Human beings since time immemorial have striven to produce more efficient plants. Huge investments of energy and money have been poured into the quest for better seeds and better plants. One way in which that investment is protected is through the Patent Act giving investors a monopoly when they create a novel and useful invention in the realm of plant science, such as genetically modified plants and cells.”

The fact is that canola, the crop in question, was developed (by public researchers) long before 1990, when Plant Breeders Rights were introduced in Canada. The first legal form of “plant breeders' rights” did not come into existence until 1961 in Europe with the formation of the International Union for the Protection of New Plant Varieties – UPOV – millennia after farmers started selecting seeds and altering plants.

The Court's opinion amounts to a huge insult to the many millions of farmers who have selected their seeds, nurtured their crops and selected their seeds every season in an unending cycle, not for maximum “efficiency” but for a wide variety of characteristics, conditions and uses – without a hint of ownership claims, patents or monopoly.

In contrast to the industrial perspective expressed in the majority opinion, the minority opinion pointed out that “there is no genuinely useful analogy between growing a plant in which every cell and every cell of all its progeny ar remotely traceable to the genetically modified cell and contain the chimeric gene and putting zipper in a garment, or tires on a car or constructing with Lego blocks. The analogies are particularly weak when it is considered that the plant can subsequently grow, reproduce, and spread with no further human intervention.” (#156)

Moral of the story: we have our work cut out for us to undo the “education” that the biotech industry has obviously inflicted on even Supreme Court Justices, to say nothing of the public and parliamentarians. This will have to be a high priority item on our post-election agenda.

The full text of the Canadian Supreme Court's judgement is

Various Voices

“In its ruling on patent protection for genetically modified crops, the Supreme Court of Canada has sown the seeds for an even bigger battle over bioengineering. . . The Monsanto case raises difficult questions about how modified genetic material can be controlled once it is created. The court rightly tossed this hot potato back to Canada's lawmakers. Rapidly developing agricultural technology, it said, may give rise to “moral concerns about whether it is right to manipulate genes in order to obtain better weed control or higher yields. It is open to Parliament to consider these concerns and amend the Patent Act should it find them persuasive. . . . It is time Canadians had a full and open debate on the merits and pitfalls of bioengineering.” – Editorial, 25/5/04

“When a farmer plants a seed, he is planting hope – hope in the future, hope in a bountiful harvest,” concluded Boehm. “He or she is not planting Monsanto's Roundup Ready gene or their patent. A seed can remain a bundle of hope, or it can become a tool of oppression.” – Terry Boehm,Vice-President of the National Farmers Union

“We congratulate the Court for confirming the vital role scientific discovery and innovation play in Canada,” said BIOTECanada president, Janet Lambert in a press release. “We need to continue to foster a Made in Canada innovation environment.” – 21/5/04

“The Canadian Seed Trade Association (CSTA) applauds the Supreme Court judgment because Canadian farmers are now ensured of access to leading seed technologies needed to compete on a level playing field for years to come. We are pleased that today's Supreme Court decision recognizes that patents are an effective and necessary tool for protecting intellectual property and rewarding biotechnological inventions. Intellectual property protection tools, such as Plant Breeders' Rights and patents will continue to help Canadian research and development to flourish and research dollars to flow in. Technology developers will be able to continue to ensure that clear, deliberate infringement of their technology is stopped.” – CSTA Press Release, 21/1/04

As an intervener in the case, in support of Monsanto, the CSTA argued that, “There is no provision in the Patent Act which creates an implied licence for farmers to save and plant seeds; International treaties and discussions recognize and support the practice of seed saving and exchanging seed, making provisions for efforts aimed at the conservation and preservation of plant genetic resources; and, Saving seed of a bred plant variety that does not occur naturally, for future planting in a commercial farming operation does not constitute genetic resource conservation or preservation work.”

In explaining its position, the CSTA said it was “defending the need for strong intellectual property protection measures and the scientific method used to develop new technology for the seed industry so that farmers can benefit from continued access to leading technology.” – press release, 23/1/04

“Within the current Patent Act, we're saying there is no so-called farmer privilege to save seed,” said Bill Leask, executive vice-president of the Canadian Seed Trade Association. “We don't think there should be.” He said the seed trade association believes seeds should be patentable. Canadian patent laws must offer at least the same intellectual property protections as laws in competitor countries or Canada will lose access to seed research investment and even the use of genetically modified seeds developed elsewhere. Leask said there is a real threat that a court ruling weakening patent protections would create an investor chill that would discourage seed companies from investing in or serving Canadian customers.

In Canada, public sector investment in seed research has become a fraction of the total compared to 20 years ago, when public spending accounted for up to 95 percent of seed research, he said. “The proportions have virtually flipped since then and if private investment pulled out, would public come back in the way it was? I think that is highly unlikely.” Leask said that if there is to be any change in patent rules for life forms, it should be made by Parliament after a debate, and not by judges on a point of law. – Western Producer, 5/2/04

“(Monsanto officials) may be high-living today, but they'll be regretting it tomorrow because if the patent follows the gene, so does the liability,” said Andrew Kimbrell, executive director of the Center for Food Safety.


#221: June 2004 TOC
Court Confusion: Brewster analyses the Supreme Court decision in the Monsanto-Schmeiser case
Organic Farmers (suing Monsanto and Bayer)
The diversity of your ecosystem
Privatization and the Public Domain -- the Seed Industry: a follow-up to Privatization and the Public Domain in RH #220: how the government listens to the seed industry at the expense of farmers and seed savers and breeders Venezuela ousts Monsanto: President Chavez curtails the growing of transgenic crops
Pepsi deal rejected by Ocean Spray Cranberries Inc.
Privatization and the Public Domain -- Traditional Knowledge, by Dawn Morrison of the Secwepemc (Shuswap) Nation
Food Miles -- a Toronto study Brazil's beef trade wrecks rainforest, according to the Center for International Forestry Research
Too much Canadian beef - increased production and decreased domestic consumption means reliance on export markets
Information Sources - look at
Eat Your Salsa! - cilantro is credited with killing food poisioning bacteris
US residents are shrinking - research shows Europeans and others are growing taller while US residents are losing height, probably because of poor social programs.