The Classic David vs Goliath Struggle.....
hearing wraps up
May 16, 2002
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.
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.
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.
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.
the corporation wouldn't pursue such farmers through court, but would seek a
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."
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.
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.
tradition and ancient right of a farmer," he said.
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
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.
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
only react to something if somebody tells us they have a problem," she
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.
particularly, gave that attempt short shrift.
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."
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
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
about patent law and the validity of the patent in this case is not
contested," Hughes said.
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