Monsanto vs Schmeiser The Classic David vs Goliath Struggle.....

Patent-infringement hearing wraps up
Murray Lyons
Saskatoon StarPhoenix
May 16, 2002

SASKATOON -- Judges from the Federal Court of Appeal questioned Thursday how farmers might infringe on the patent on the Roundup Ready gene if they don't know they possess Roundup Ready canola on their land.

The questions came in the second of two days of hearings in Saskatoon into the appeal by Percy Schmeiser against the ruling by the federal court trial judge that Schmeiser had infringed on the patent for Monsanto's Roundup Ready gene.

Justice Julius Isaac, who headed the three-person panel, and Justice Marc Noel both asked how a person could infringe on a patent without knowing they were doing it.

Noel questioned Monsanto's lawyer Roger Hughes on what the chemical and biotechnology corporation would do if they found two per cent Roundup Ready resistant canola in a farmer's crop of 1,000 acres of conventional canola.

Hughes says the corporation wouldn't pursue such farmers through court, but would seek a "happier" solution.

"By the good grace of Monsanto, they wouldn't," Justice Noel responded. "But what you are saying is (Monsanto) could seek damages. You're suggesting the court could grant a remedy."

Hughes said Monsanto wouldn't pursue such farmers for patent infringement even though the crux of the original court ruling against Schmeiser was that the mere presence of the gene on his land constituted infringement.

Outside court at the appeal's conclusion, Schmeiser's lawyer Terry Zakreski repeated contentions he made before the appeal judges that the case involves a collision of patent law with common law property rights of a farmer to own and save seed to replant another year.

"It's a tradition and ancient right of a farmer," he said.

"Merely because somebody has an invention that can spread itself around and can get on your land without you wanting it to be there, that shouldn't interfere with your property rights.

"If you are telling them you have no right to save your seed, you might as well be telling them you have no right to farm," he said.

Also outside of court, Monsanto Canada spokesperson Trish Jordan said she thought the questions by the judges were hypothetical. She said if a farmer was unaware he has Roundup Ready canola growing on his land, Monsanto wouldn't be aware of it either.

"We can only react to something if somebody tells us they have a problem," she said.

In the final day of arguments in the appeal Thursday, both sides tried to address several key issues. Schmeiser's lawyer tried to get the judges to agree that Schmeiser's Charter rights were violated when Monsanto took seed samples from the Humboldt Flour Mill for testing.

Justice Isaac, particularly, gave that attempt short shrift.

"You can talk until you are blue in the face and you won't convince me on that one," Isaac told Zakreski. "It's not your best point on this appeal."

Hughes said the common law cases that Zakreski cited don't apply in patent law and the recent Supreme Court decision on grey market satellites provided some guidelines for courts.

Hughes says that ruling stated that if a statute ... is clear on how it should be interpreted, common law interpretations such as who owns the progeny of stray bulls or case law from British Admiralty courts shouldn't be cited, as Zakreski did.

"It's about patent law and the validity of the patent in this case is not contested," Hughes said.