Columnist Robert Horton ran a story, entitled “Muckraking movie takes on biotech industry” in the Daily Herald about a new documentary film: “The Future of Food.” It’s not the views of the documentary that scared me (documentaries are often slanted to make a point) but it was instead the views of the columnist himself that were worrisome.

In his article, Horton noted that “the film depicts the inexplicable Supreme Court decisions that opened the door for companies to patent living species.” This set the stage for his next point, which was that with seeds and grains, “this opens up a nightmare scenario, especially for farmers.” Scarier than this column?

I’m OK with people having different viewpoints, I just get offended when they don’t check the facts and just propagate misconceptions. Horton gives an overview of a recent Canadian case where Monsanto Corp. sued a farmer for prorogating plants grown with patented genes stating the facts as:

A hapless Saskatchewan farmer recounts his experience getting sued by Monsanto for illegally possessing their patented product. The Monsanto canola seeds probably blew onto his farm from trucks passing by on the highway, and he doesn’t want their stuff on his property anyway, but there it is, growing and mixing with his own seeds.

This sounds a little like someone walking into your home uninvited, urinating on your living room rug, and then suing you for possession of their bodily fluids. The courts, however, have been supporting Monsanto.

But, is it really like that? Despite an abundance of news articles perpetuating the view that this case was about an elderly gentleman haplessly planting a few plants in Mr. McGregor’s garden, as though it was his only sustenance, this case actually concerns a large scale, commercial farming operation that grew canola containing a patented cell and gene without obtaining license or permission. This is not about the innocent discovery by farmers of “blow-by” patented plants on their land or in their cultivated fields.

Schmeiser never purchased Roundup Ready Canola nor did he obtain a license to plant it. Yet, in 1998, tests revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up of Roundup Ready plants. While the origin of the plants is unclear, the trial judge found that “none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality” ultimately present in Schmeiser’s crop.

In the decision, Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, the Supreme Court of Canada upheld the validity of the Monsanto patent. Canadian Patent 1,313,830 (“the ‘830 patent”), issued to Monsanto for “Glyphosate-Resistant Plants,” claims a gene, methods of inserting the gene into a cell, and the derived cell line. However, it does not include claims to the plant per se.

The patent claims:

1. A chimeric plant gene which comprises: (a)a promoter sequence which functions in plant cells;(b)a coding sequence which causes the production of RNA, encoding a chloroplast transit peptide/5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) fusion polypeptide, which chloroplast transit peptide permits the fusion polypeptide to be imported into a chloroplast of a plant cell; and (c)a 3′ non-translated region which encodes a polyadenylation signal which functions in plant cells to cause the addition of polyadenylate nucleotides to the 3′ end of the RNA; the promoter being heterologous with respect to the coding sequence and adapted to cause sufficient expression of the fusion polypeptide to enhance the glyphosate resistance of a plant cell transformed with the gene.

The Supreme Court underwent some linguistic jujitsu in construing the claims to not extend to plants and seed (finding that the cultivation of plants containing the patented gene and cell does not constitute an infringement) but found that Schmeiser’s actions constituted use of the patented product that resulted in infringement.

The dissent disagreed, stating that “use” was limited by the subject matter of the invention (the gene, the insertion of the gene and the derived cell line) and did not extend to cover disclaimed subject matter, namely the plant. To construe the claims in the patent otherwise would confer patent protection on the plant which, according to the minority, would be improper. However, Monsanto did not claim protection for the genetically modified plant itself, but rather for the genes and the modified cells that make up the plant.

In the end, the court stated that Schmeiser actively cultivated Roundup Ready Canola as part of his business operations and noted that the trial judge found that Mr. Schmeiser was not an innocent infringer given that he knew or should have known that he saved and planted seed containing the patented gene and cell and that he sold the resulting crop also containing the patented gene and cell.

While Monsanto states that this is a matter of putting farmers on a level playing field and not letting freeloaders gain the benefits without paying, there has been criticism from some farmers and international agronomic groups because of its potential to effect subsistence farmers who need to grow and collect their own seeds. In any case, it seems that farmers will always be able to simply decide whether Monsanto’s seeds are worth the legal restrictions they carry.

See the text of the Supreme Court decision here.

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