The Percy Schmeiser Case...

In a presentation on genetically modified plants during one of our policy courses, it was mentioned that "we all know the Percy Schmeiser case." But it strikes me that not everyone is familiar with the story or its influence on a growing issue. So here is a summarized version:

In the mid-90s, the biochemical leviathan Monsanto developed a genetically modified canola seed that is resistant to its Roundup brand of herbicide, which became known as Roundup Ready Canola. Farmers are required to purchase a license in order to use the seed. After only two years in use, it quickly constituted one quarter of Canada's canola production.

Percy Schmeiser was a canola farmer in Saskatchewan with a 1,000 acre farm and a custom strain of canola. He did not use Roundup Ready Canola, but found in 1997 that a portion of his crops were resistant to Roundup herbicide, which he used to kill weeds even though his canola plants typically die. But this time, many of them survived. A farmhand later saved the seeds from the resistant plants and they were planted the following season and later sold for feed. When it was revealed that the seeds being used by Schmeiser were the Roundup Ready variety, Monsanto sued Schmeiser for patent infringement.

Schmeiser, a former mayor and former member of the provincial legislature, fought the allegations, claiming that his actions were accidental and that the seeds came onto his property without his knowledge or consent. Although Monsanto admitted this was possible, the federal judge found that it was extremely unlikely and ruled in favour of Monsanto, citing Schmeiser's patent violations. It still remains unclear how the seeds got onto Schmeiser's farm.

Schmeiser, who had received a lot of publicity and (financial) help from environmental & anti-genetic groups, appealed the decision, but it was upheld by the Federal Court of Appeal. Schmeiser then tried the Supreme Court, which in a 5-4 decision, also ruled in favour of Monsanto. It did, however, also decide that Schmeiser did not have to pay Monsanto the nearly $20,000 he had received from sale of the modified canola. More importantly, he also did not have to pay for Monsanto's legal fees, which were well over $500,000.

As a result of the judgements, Schmeiser had to destroy all trace of his custom-bred strain, which he had been using for several decades. He also had a legal bill of approximately $400,000 to deal with. He now travels the world as a speaker telling his story and raising awareness of genetically modified plants, as well as the tactics of major companies like Monsanto. Indeed, many predict that the judge's decision on the poor likelihood of Monsanto's seed spreading accidentally is a reflection of the lack of knowledge we have on genetically modified plants, which have since been shown to spread very rapidly.

Schmeiser did, however, sue Monsanto in 2007 for the clean up costs after more Roundup Ready Canola made its way onto his property. An out of court settlement was agreed upon in 2008. Although it was only for a few hundred dollars, it demonstrates that the danger of seeds spreading is very real.

What is particularly interesting about the case is that none of the three federal courts approached it as an issue over the spread of the seed -- as Schmeiser did in 2008 -- but rather the patent violation. It set a protective precedent for large companies like Monsanto in that it recognizes patent violations as priority over the accidental spread of product, a problem that is sure to increase over the coming years.