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4-Patents: Schmeiser to take fight against Monsanto to High Court



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                                  PART I
-------------------------------- GENET-news --------------------------------

TITLE:  Patent battle lives on
        Schmeiser to take fight against Monsanto to High Court
SOURCE: The StarPhoenix, Canada, by James Parker
        http://www.canada.com/search/story.aspx?id=96546490-0e9e-4e8f-ba0c
        -8872ac98f1ab
DATE:   May 8, 2003

------------------ archive: http://www.gene.ch/genet.html ------------------


----------------------------------------------------------------------------
   "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.' "
----------------------------------------------------------------------------



Patent battle lives on
Schmeiser to take fight against Monsanto to High Court

Percy Schmeiser will take his fight against Monsanto to the Supreme Court

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.


                                  PART II
-------------------------------- GENET-news --------------------------------

TITLE:  Farmer wins hearing from Supreme Court in patent battle with Monsanto
SOURCE: Canadian Press
        http://www.canada.com/search/story.aspx?id=eb26a61b-5c9b-4a35-b8ab-
        a935fa8bdc39
DATE:   May 8, 2003

------------------ archive: http://www.gene.ch/genet.html ------------------


Farmer wins hearing from Supreme Court in patent battle with Monsanto

OTTAWA (CP) - The Supreme Court of Canada has agreed to sort out a long-
running legal battle between a Saskatchewan farmer and biotech giant
Monsanto over patent rights to herbicide-resistant canola.

The court, in a decision released without comment Thursday, agreed to
hear the case of Percy Schmeiser, who is challenging past rulings that
held him liable for over $170,000 in damages and legal costs.

At issue are Monsanto's patent rights to Roundup Ready canola, a
genetically modified strain resistant to powerful herbicides that would
normally kill the plants, widely used to produce cooking oil.

Monsanto charges farmers a fee of $15 an acre to use the seeds. Some
20,000 farmers across the country planted the seeds in 2000, with the
crops covering between 4.5 million and 5 million acres and accounting for
about 40 per cent of Canadian canola production.

Schmeiser, 72, who has farmed for some 50 years near Bruno, Sask., was
sued by Monsanto for growing its seeds without permission.

The Federal Court trial division agreed with the company that its patent
rights had been violated and ordered Schmeiser to pay $19,000 in damages
and $153,000 in court costs.

The judgment was upheld by the Federal Court of Appeal, which continued
to hold Schmeiser liable but rejected a counter-claim by Monsanto to
raise the damage figure.

Schmeiser denies that he knowingly violated the patent. He contends the
herbicide-resistant crop grown in his fields may have resulted from seeds
blowing off a passing truck or from pollination from nearby fields where
his neighbours were growing Roundup Ready canola.

The case has become a cause celebre in Western Canada and has attracted
attention in other countries, making Schmeiser something of a folk hero
among farm and consumer activists who worry about the spread of
genetically modified crops and the economic clout of the companies that
hold patents for them.

No date has been set for the Supreme Court hearing.