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percy schmeiser, the saskatche-wan farmer who was taken to court by biotech giant Monsanto — and lost — is not throwing in the pitchfork just yet.He filed a notice of appeal June 19.
The motion asks the Federal Court to quash the decision handed down by judge Andrew McKay last June ordering Schmeiser to turn over profits from his 1998 crop of canola plus $200,000 in damages to chemical and seed company Monsanto.
That was after the judge found that Schmeiser’s crop contained an herbicide-resistant (aka Roundup-Ready) variety of canola that is patented by Monsanto, and that Schmeiser hadn’t purchased the licence required to grow it.
Schmeiser’s lawyer, Terry Zakreski, lists 17 grounds of appeal, arguing that Judge McKay erred in law and mixed up facts. The judge “wrongly construed” the patent for Monsanto’s Roundup-Ready canola, the appeal states, applying a definition that was too far-reaching.
Zakreski also argues that the judge erred when he found that there was “no evidence” that the Roundup-Ready canola could have blown onto Schmeiser’s land from a neighbouring farm.
Schmeiser has maintained that he never planted Roundup-Ready canola and that seed and/or pollen from any of the five nearby farms growing Roundup-Ready canola could have been carried onto his property by birds, insects or the wind.
But McKay found that Schmeiser knew, or ought to have known, there was Roundup-Ready canola growing in his field and that he did nothing to rectify the situation.
If anyone is at fault, Zakreski argues, it’s Monsanto. The company should be held responsible for unleashing a genetically modified organism into the environment that it can’t control.
“When someone releases an invention that replicates unconfined into the environment, they lose their patent rights,” Zakreski says. Otherwise, “you’re trapping people in patent claims.”
Schmeiser says over the phone from his home in Bruno, Saskatchewan, that the ruling sets a bad precedent. Now any farmer whose field is involuntarily contaminated by Monsanto seed can be held liable for damages, he says.
“It’s no longer just a Percy Schmeiser case any more.” He says the only reason Monsanto took him to court in the first place was to test the legal reach of its patent.
Monsanto spokesperson Trish Gordon says, “We will defend our patent vehemently, but it’s never been our policy, nor will it ever be our policy, to prosecute farmers whose fields are inadvertently affected by GM seed.”
Monsanto’s original statement of claim accused Schmeiser of brown-bagging Roundup-Ready seed in order to grow Monsanto’s canola. The company later dropped the claim. Gordon says gathering such evidence “would have involved a significant amount of work and we didn’t feel we needed it.”
Court documents from the original trial reveal that it was an “anonymous tip” that first put Monsanto onto Schmeiser. The company then sent private investigators to take samples from his fields.
Zakreski argued unsuccessfully that the evidence should have been inadmissable because it was obtained without Schmeiser’s permission.
Schmeiser’s appeal is the latest chapter in what has become an international cause célèbre. Eco activists have rallied around the farmer, a Web site has been set up (www.percyschmeiser.com) and Schmeiser was given the Mahatma Gandhi Award, named after the famous pacifist hero of Indian independence, on a recent trip to India, “in recognition of his work for the betterment of mankind.”
“There’s a saying that hard cases make bad law,” Zakreski says, “and this was a hard case.”
enzom@nowtoronto.com
