Volume 7, Number 2
[In This Issue]
by Clark Wolf, Director of Bioethics
Percy Schmeiser has become a folk hero of sorts. His story has quite literally become the stuff of legend and song, and he has been honored with awards from several groups that see him as a champion who stood up to a large multi-national corporation. Schmeiser is a Canadian farmer who was sued by Monsanto for violation of their intellectual property rights in the Roundup Ready canola he raised in his fields. Schmeiser didn’t purchase the Roundup Ready canola that was found growing on his land. Apparently the parent stock blew in from the road or from a neighboring field. When Schmeiser collected seed and saved it to plant in the following year, Monsanto’s gene was present in the saved seed and was thus present in Schmeiser’s canola. Tests identified the presence of Monsanto’s intellectual property in Schmeiser’s crop, and since he had not purchased the seed from Monsanto and had no license to use their patented Roundup Ready technology, Monsanto brought suit against Schmeiser in the Canadian court system. On appeal, the case rose all the way to Canada’s Supreme Court, which delivered its ruling on May 21, 2004. In spite of the fact that Monsanto’s patented genes had apparently drifted onto Schmeiser’s field, the court found in favor of Monsanto. In a five to four decision, they ruled that Percy Schmeiser violated Monsanto’s intellectual property rights by growing Roundup Ready canola without a license. For this reason, Monsanto v. Schmeiser has been represented as implying that farmers can be held liable for the unintentional and adventitious presence of patented material in their fields. In this case, since Schmeiser never used Roundup® to clear the weeds in his field, the court found that no damages were due to Monsanto. Both sides in the legal battle declared victory and retreated to their respective corners to nurse their wounds.
The Schmeiser case raises many interesting issues:
• Do farmers have a right to save seed from one year to the next?
• If patented genes drift onto one’s field, can one be sued just because they are present in one’s crop?
• Does this case imply that farmers have an obligation to test their field for the presence of patented genes?
• If farmers are surprised to discover that patented genes are present in their crops, are they obliged to obtain a license, or perhaps to destroy their crop entirely?
Some of the legal issues raised in Monsanto v. Schmeiser are peculiar to Canada’s legal system and would be different in the United States. Canada does not allow patents that cover the plant itself, so the 52 claims that constitute Monsanto’s Canadian patent number 1,313,830 involve claims to the vectors, gene sequences and modified plant cells, not claims to the plant as such. The four justices who voted against Monsanto argued that these 52 claims effectively constituted a legal right in the plant and that the patent was thus invalid. In the US this issue simply would not arise because US law has recognized organisms as patentable subject matter ever since Diamond v. Chakrabarty (1980). If anything, it would seem that Monsanto would have an even stronger legal case if the same situation were to arise in the US.
Did Schmeiser Intentionally or Knowingly Violate Monsanto’s Rights?
Was the court wrong to rule in favor of Monsanto? Schmeiser’s advocates argue that he simply saved the seed from the previous year and that he had no contractual obligation to Monsanto since he hadn’t purchased their seed. Apparently, Monsanto’s Roundup Ready canola entered or was introduced to Schmeiser’s land when it was blown off of trucks or wagons of other farmers who were taking their Roundup Ready canola to the local grain elevator. His friends describe Percy Schmeiser as an innocent bystander who had the bad luck to be downwind of Monsanto’s crops.
But the court documents show that the case is much more complicated than the folk tale would suggest. The court did not accept Schmeiser’s claim to be an innocent bystander because it regarded his story as inconsistent with the finding that 95-98% of his 1,030 acre crop was pure Roundup Ready canola. The court concluded that Schmeiser must have used Roundup to select for Monsanto’s Roundup Ready gene and that he segregated what he knew to be Roundup Ready seed and stored it separately from his other seed stock. While the initial plants may have come onto his land by accident, there seems to have been nothing accidental about his selection of the Roundup Ready seed. Writing for the Majority, Justices McLachlin and Fish state:
“Mr. Schmeiser complained that the original plants came onto his land without his intervention. However, he did not at all explain why he sprayed Roundup to isolate the Roundup Ready plants he found on his land; why he then harvested the plants and segregated the seeds, saved them, and kept them for seed; why he next planted them; and why, through this husbandry, he ended up with 1030 acres of Roundup Ready Canola which would otherwise have cost him $15,000. In these circumstances, the presumption of use flowing from possession stands unrebutted.”
The court was convinced that Schmeiser was not an innocent bystander, since the evidence strongly suggests that he intentionally refined his seed and specifically selected for the presence of the patented Roundup Ready gene. For the justices who joined the majority opinion, this finding was determinative. For this reason, their ruling does not imply that farmers have a positive obligation to test their seed, nor does it imply that farmers can be sued for accidental, unintentional, or ‘adventitious presence’ of patented plant material in their crops. Percy Schmeiser’s website argues that Monsanto v. Schmeiser is a “classic David and Goliath story.” But if Schmeiser intentionally selected for the presence of a patented gene, then it is not surprising that the court found in favor of the patent holder. Since he took steps to select his seed for the patented gene and its properties, it is hard to see Schmeiser as an innocent victim of a corporate Goliath.
Given that the court found him guilty of patent violation, Percy Schmeiser can be considered lucky to have avoided any obligation to pay damages. The court awarded no damages to Monsanto, in spite of its recognition that Schmeiser would have owed Monsanto $15,000 (Canadian) for the right to use its patented technology. The reason for this was that the court found that Schmeiser had not used Roundup to control weeds in his canola field and had earned no economic advantage from the presence of the patented gene. Since Monsanto’s lawyers had only requested damages for the economic advantage due to the patented technology, the court ruled that the patent holder was not entitled to any compensation.
Do Farmers have a Right to Save and Select Seed?
As is shown by the narrow margin that decided this case in the Canadian High Court, there is room for differences of opinion. Normally, if your physical property finds its way onto my land and you take no steps to recover it, I can claim it as my own. It is regarded as “abandoned,” and available for claim. But intellectual property is different in this respect: Monsanto didn’t own the plants; it owned the Roundup Ready technology.
Percy Schmeiser describes himself as a plant breeder and a seed saver. He argues that he has a right to select and refine the plants he grows and points out that many important advances in plant breeding have been accomplished by farmers like himself, not by gigantic agribusiness corporations. He claims that contamination from Monsanto’s canola cost him 50 years of research because he had been selecting and refining his canola seed each year ever since he started farming.
Although there are very good reasons why we should maintain and protect farmers’ right to save and refine their own seeds, it is far from clear that this right should protect those who specifically select for a patented trait. Plant breeders who start from patented stock are required to obtain a license before they can sell the results of their research, and it is reasonable to suppose that this requirement should apply to plant breeders who are farmers as well as those who are primarily engaged in research.
Does this ruling limit farmers’ rights? In one sense it clearly does because it implies that farmers do not have an unlimited right to breed and select plants. But as long as they start with their own stock, and as long as they avoid specific selection for patented traits, it would seem that Monsanto v. Schmeiser leaves their right intact. This result will not satisfy those who would like to preserve a farmer’s right to save and select seed as an absolute right, but neither does the ruling seem patently inappropriate.
The ruling in Monsanto v. Schmeiser does not imply that farmers do not have a right to save seeds or that they must license or destroy their crop if they discover the presence of patented genes in their fields due to pollen drift or unintentional seed dispersal. But there are some remaining reasons for concern about this case and its implications for agriculture. While Monsanto v. Schmeiser does not provide a precedent for holding farmers legally liable for the mere adventitious presence of patented material on their land, it does not shut off the legal possibility. While it seems very unlikely that US or Canadian courts would adopt this stronger conception of liability, which, in effect, would obligate farmers to test their crops, it would put many people’s fears to rest if the issue were made clear once and for all.
[In This Issue]
May 23-27 2005 - Bioethics Institute
If you discuss issues concerning agriculture, food, human health, families, the environment, animals, or biotechnology in your courses, and you find yourself fielding ethical questions about these topics, the Bioethics Institute is just the thing for you. Information
June 13-July 1, 2005 - Online course: Teaching Bioethics
This course will be of interest to any science or social studies teacher interested in teaching bioethics. Information
June 22-24 - Bioethics Workshop I: Bioethics Workshop for Educators
This course is designed for educators who are interested in discussing bioethics with their students or extension audiences. The focus will be on ethical issues in biotechnology, especially agricultural biotechnology, but other topics relevant to both agriculture and human health will be covered. Information
July 11-29, 2005 - Online course: Ethics and Animals:
This course will enable participants to recognize and distinguish different views about the moral status of animals. Information
July 11-29, 2005 - Online course: Ethics and Biotechnology:
Modern biotechnology is as controversial as it is promising. Teaching the associated ethical issues can help engage students to learn the relevant science concepts and to learn the skills necessary to contribute to ongoing social dialogue about science and society. Information
July 20-22 - Bioethics Workshop II - Advanced
This advanced workshop is open to educators who have attended one of the previous bioethics workshops. Assuming familiarity with ethical arguments, utilitarianism, and rights-based theories, this workshop will focus on substantive analysis of current controversies in bioethics. Information
[In This Issue]
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Bioethics in Brief
Volume 7, Issue 2
Published four times per year
by the ISU Office of Biotechnology
and the Bioethics Program.
To subscribe, call 515-294-7356.
Editor: Camie J. Stockhausen
Bioethics Outreach Coordinator: Kristen Hessler
Bioethics Program Coordinator: Clark Wolf
Bioethics Program Assistant: Katy Reeder
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