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

Schmeiser Argues Patent Not Violated
Monsanto patent not infringed because Roundup not used: farmer
By Murray Lyons
Saskatoon StarPhoenix
May 16, 2002

Saskatchewan farmer Percy Schmeiser didn’t infringe on Monsanto’s patent for Roundup Ready canola if he never sprayed his crop with Roundup, his lawyer argued in court Wednesday.

Monsanto Co. and Monsanto Canada Inc. sued Schmeiser for growing 1,030 acres of Roundup Ready canola in 1998. The company states that Schmeiser never entered into a technology use agreement to pay the licensing fee for using the canola and thus infringed its patent.

A Federal Court judge ruled in Monsanto’s favour in early 2001. Schmeiser appealed and arguments began Wednesday before three federal Court of Appeal judges.

Schmeiser’s lawyer, Terry Zakreski, argued the trial judge erred when he ruled that it wasn’t necessary to spray Roundup on a crop containing the Roundup Ready gene in order to infringe on the patent.

Zakreski quoted a judgment from British Admiralty law, in the case of a sea captain who had a pump aboard his ship that violated British patent law. The court in that case found that even though the pump was aboard the ship in British waters, there was no patent infringement because the pump wasn’t being used.

Zakreski argued that like a pump on a ship that is in the “off” position, the Roundup Ready gene within a canola plant is in the “off” position until a farmer sprays his crop with Roundup.

  “Until you spray with Roundup, the gene is just a passenger within the canola,” Zakreski said.

He argued the Monsanto gene is defined in the company’s patent by its use; that inserted into a plant, it provides resistance to Roundup.

“The gene defined itself by its utility,” Zakreski said.

Since there was no accepted evidence in the trial that Schmeiser sprayed his crop with Roundup in 1998, then he made no use of the patent, the lawyer argued.

In his judgment from the trial, Justice Andrew McKay wrote that the claims in the Monsanto patent relate to genes can cells that are glyphosate resistance, but said the invention doesn’t require the glyphosate to be used in order to be valid.

This was an error in law, Zakreski argued.

“In a world without glyphosate, this invention has no meaning,” he said.

But Justice Marc Noel, who is hearing the appeal, challenged Zakreski to state how the trial judge was wrong in saying the gene and its characteristics are still contained in a plant regardless of whether it gets sprayed with Roundup.

Monsanto’s lawyer Roger Hughes will respond to Zakreski’s arguments today. As well, he’ll argue Monsanto’s cross-appeal that MacKay erred in setting the amount of the profit that Schmeiser made at $19,832.

Hughes argues evidence at the trial made it clear the net profit from the 1998 crop was more likely to have been $105,935 and that is what Schmeiser should owe Monsanto.

MacKay also ruled that Schmeiser should pay court costs of $153,000 to Monsanto.

Schmeiser was in court Tuesday, fresh from a trip to Africa where he was at a conference where he said he again argued for the rights of farmers to save the seeds from their crop for replanting.