Food for thought: editorial from Canada's natinal newspaper http://www.theglobeandmail.com/servlet/ArticleNews/TPStory/LAC/20040126/EPATENT26/TPComment/Editorials The farmer, the canola and mighty Monsanto Monday, January 26, 2004 - Page A14 Who owns life? Who owns it if it blows into your backyard? A battle that has raged for years between Saskatchewan farmer Percy Schmeiser and U.S.-based biotechnology giant Monsanto Co. has now reached the Supreme Court of Canada. The court will decide whether Monsanto had the right under Canadian law to patent an advanced living organism -- the seed of a variety of canola whose genes Monsanto altered to make it resistant to the company's herbicide Roundup. It will also rule on whether Mr. Schmeiser had the right to use seeds from the modified canola without paying a licence fee to Monsanto, and whether it matters if, as he claims, the original seeds blew unbidden onto his farmland. The ruling, when it comes, will reach far beyond the circumstances of Mr. Schmeiser. Not only will it help define patent law in Canada, but it should speak to the question of liability for any genetically modified organisms capable of drifting through the air. Mr. Schmeiser has 1,400 acres of farmland in Bruno, Sask. In 1998, Monsanto filed a suit alleging that he had planted its proprietary canola in 1997, and harvested the seeds for replanting in 1998, without notifying the company and paying the standard licence fee of $15 an acre. Mr. Schmeiser said the seeds had blown onto his property from a neighbour's field or from a passing truck carrying Roundup Ready seeds. The Federal Court of Canada ruled against Mr. Schmeiser in 2001, deciding that the balance of probabilities was that he planted the seeds, that he "knew or ought to have known" that they were Roundup Ready and that he should have contacted Monsanto. The Federal Court of Appeal upheld that ruling in 2002. If Mr. Schmeiser knowingly pirated patented Monsanto seeds, it makes sense that he should be found liable for not paying the licence fee already paid by tens of thousands of Canadian users of Roundup Ready canola. The point of patents is not just to persuade inventors to disclose the details of their inventions, but to encourage companies to invest money in creating useful products by assuring them that, if their products are successful, they will profit from their work. If, as Mr. Schmeiser continues to argue, the initial seeds somehow blew onto his property -- and that he harvested the seeds for replanting after noticing that the initial crop was resistant to herbicide -- the issue is a bit more complicated. Can Monsanto reasonably claim compensation for seeds that not only aren't solicited, but might be resented by farmers trying to grow different strains of canola resistant to different herbicides? Studies have shown that canola pollen can travel as far as four kilometres in ideal wind conditions. Monsanto is already paying to help some prairie farmers whose crops have been contaminated by stray Monsanto seeds. It may fairly be argued that, even if the original seeds arrived without his participation, Mr. Schmeiser incurred a debt to Monsanto if he knowingly harvested the seeds to plant a far wider 1998 crop. Even here, though, the terrain is soft. The Canadian Biotechnology Advisory Committee, an expert panel set up to counsel the federal government on biotech matters, recommended in 2002 that farmers be allowed to harvest seeds from an earlier crop of patented plants without paying new licence fees to the patent owner. To our mind, this would unreasonably diminish the value of the patent protection. If there is a legitimate patent in the seeds being planted, the company should be free to require as a condition of licence -- as it has consistently required, in writing -- that a fee be paid any time a farmer plants the seeds, second-generation or otherwise. The crucial issue is whether Monsanto should have been given a Canadian patent on Roundup Ready canola in the first place. In 2002, the Supreme Court ruled that the Harvard mouse, a mouse genetically engineered to develop cancer for use in medical research, could not be patented in Canada. The court concluded that Parliament, when it defined "invention" in the Patent Act 135 years ago, did not intend to cover higher life forms. It ruled that if Parliament wanted to allow patents on those life forms, it would have to amend the law to say so explicitly. Mr. Schmeiser's argument is that the canola plant is a higher life form, and that Monsanto should not have been eligible for a patent on it. Monsanto's argument is that its patent is on the altered gene rather than the plant itself, though the genes in fact are everywhere within the plant. We quarrelled in 2002 with the Supreme Court's ruling on the Harvard mouse, finding the minority judges' dissent more persuasive: that the "proper question is not whether Parliament intended to include 'oncomice' or 'higher life forms' or biotechnology generally in patent legislation," but whether it intended to protect inventions it couldn't foresee soon after Canada's birth. The minority would have allowed the patent and, now as then, we support the issuing of patents to such genetically modified creations as Roundup Ready canola. There is a public interest in encouraging biotechnological research, whether (as with the Harvard mouse) it may lead to the relief of cancer in humans or (as with the canola) it may help farmers with their crops. However the Supreme Court squares its Harvard mouse ruling with the question of Monsanto's canola, Parliament should amend the Patent Act to explicitly cover all new and useful inventions, including genetically manipulated non-human higher life forms, except where society outlaws such research. As for the value of the seeds -- who has to pay, and when -- the court will have every farmer in Canada peering anxiously over its shoulder.