Seeds of doubt in patent case

The little courthouse looking out onto the South Saskatchewan River in Saskatoon would surely make it to the quarterfinals, at least, of any competition for the least pretentious public building in this prairie province. But for the trial of the federal civil case of multinational Goliath vs. farmer David, just concluded last week, it drew visitors from around the world.

The lawsuit has raised some of the most fundamental questions in agriculture today: Who really "owns" the life-forms that farmers sow in their fields? And if it's not the farmers themselves, for how long can the seedmakers insist on payment? Will farmers be reduced to being mere renters of germ plasm within an agricultural sector dominated by a few powerful companies?

Percy Schmeiser, of Bruno, Saskatchewan, will soon find out.

The agrichemical giant Monsanto is suing him, alleging that he has grown its genetically modified canola without signing the contract or paying the "technology fee" it requires. He insists that the Roundup Ready canola, designed to be used with Monsanto's popular Roundup pesticide, got onto his property by accident - by windblown seed, or cross-pollination from neighboring fields.

From the company's perspective, the case "is about protecting the patent system we have in Canada, which lets us bring forward new technologies," says Craig Evans, general manager for biotechnology with Monsanto Canada's agricultural division.

To protect its patent rights, Monsanto has developed a "technology use agreement," or TUA, which includes a fee per acre (C$15, or a little over US$10) which farmers pay to grow Roundup Ready canola, in addition to the cost of the seed. Mr. Evans says the company was forced to sue Schmeiser - for nearly $300,000, including punitive damages - because of its "commitment to maintain a level playing field" for the more than 20,000 western Canadian farmers signed onto the program.

Monsanto maintains that 98 percent of its growers are "in compliance" with the terms of the program. But Don Dewar, president of Keystone Agricultural Producers, the Manitoba farmers' federation, says, "Our producers have been complaining about the TUA since the beginning," One particular sticking point: The TUA prohibits farmers from saving seed from one year to the next - thus disrupting a tradition as old as farming itself.

Outside observers see the TUA as a way for Monsanto to continue to squeeze profit from a pesticide with an expiring patent. By genetically engineering seed that can withstand Roundup, and licensing companies to produce this so-called Roundup Ready seed, Monsanto ensured a market for Roundup, as a single pesticide that can be used against weeds while leaving the canola itself intact. The technology fee assures the company continuing profits.

Monsanto polices the TUA through audits of farmers' fields and a "tip line" for farmers to use to report suspected cheaters.

Evans discussed the audits in terms of fairness to all growers. "We had calls from the Bruno area that an unfair advantage was accruing to Mr. Schmeiser," he told the Monitor.

But others see a dark side to it.

"There are social consequences to all this," says Gabriela Flora, biotechnology program associate at the Institute for Agriculture and Trade Policy in Minneapolis. "What does this do for the social fabric of rural communities when farmers are encouraged to report on each other?"

Monsanto lawyers argued in court that the mere presence of the GM canola on Schmeiser's fields infringed its patent. But Schmeiser's lawyer, Terry Zakreski, countered, "We submit that farmers should not be saddled with the obligation to keep this gene off their land. It should be Monsanto's obligation to keep the gene from spreading."

With the Roundup Ready gene released into the environment, Mr. Zakreski maintained, Monsanto has therefore implicitly waived its patent rights.

Indeed, for biotech skeptics, the real problem is the environment being polluted by "volunteer" GM canola that is proving impervious to pesticides.

Central to Monsanto's case against Schmeiser is testimony that his fields simply had too much Roundup Ready canola to be anything other than intentional planting.

But showing a visitor around his farm, Schmeiser presents a strong case why he didn't need GM canola seed. He points out one of his fields of conventional canola, lush and green with plants several inches high, so thick the rich black soil from which they grow is barely visible. Across the way, a field he identifies as Roundup Ready canola, belonging to his neighbor, looks like green velvet with the nap worn away; the plants obviously aren't as far along as Schmeiser's. The GM field has been sprayed, he says. But Roundup can be applied only once weeds have sprouted - and had a chance to consume a goodly share of moisture and fertilizer, competing with the canola. Schmeiser prefers to spray before seeding.

"I'm not saying I'm the greatest farmer, but I've tried to follow good farming practice."

He has been farming these gently rolling fields for over half a century. "Our grandfathers made good choices," he said of the forebears who homesteaded here around 1904, clearing the woods of the Muskiki Hills.

The low spots become little ponds, or sloughs, which which attract ducks and birds and other wildlife. "The coyotes are my companions when I'm out on my tractor, working the land" he says. "They follow me because they know I'll turn up mice for them."

Schmeiser lives in a hamlet, but he lives in the world too. A longtime former mayor of Bruno, he served in the provincial legislature, ran a farm implement business, and traveled the world. He obliquely acknowledges that some of his neighbors may have a motivation for reporting him to the "snitch line." "When you're in politics you sometimes step on some toes," he says.

But from his work in politics, he also learned that "you have to listen to people. And I think that's what companies are not doing."

Justice Andrew MacKay has promised to try to reach his verdict in the Monsanto case by the end of August.

(c) Copyright 2000. The Christian Science Publishing Society