A small Canadian farmer who tried to break the biotech grip of giant Monsanto Co narrowly lost a final battle on Friday when the Supreme Court of Canada upheld patent protection held by the company over a genetically modified form of the canola grain.
The court ruled that Saskatchewan's Percy Schmeiser, 73, had infringed Monsanto's patent by growing a special kind of canola, which is for feed and cooking oil, without a license. The Monsanto canola is altered to resist the company's Roundup herbicide.
The battle had pitted environmentalists and some farmers against the biotech industry and other farmers who argued that research for grains used in Canada would dry up if not patent-protected.
"By cultivating a plant containing the patented gene and composed of the patented cells without license, the appellants (the Schmeisers) thus deprived Monsanto of the full enjoyment of its monopoly," the high court ruled by a vote of 5-4.
Schmeiser had insisted that he was an innocent bystander whose life's work was ruined by Monsanto. He said Roundup Ready canola plants found on his field must have come from seeds that blew in from the neighbours or from passing trucks.
Monsanto said independent tests of his farm found that 1,030 acres were 95 percent to 98 percent tolerant to Roundup - a level contested by Schmeiser.
The company said that regardless of how the seeds came to be on his field, Schmeiser ignored warnings from its agent not to replant them the next season.
"Mr Schmeiser was not an innocent bystander; rather he actively cultivated Roundup Ready Canola," the court wrote.
It ordered him to return Roundup Ready seeds and not to use such seeds in the future. It did let him keep his profit since he did not use the herbicide, and it ruled he did not have to pay Monsanto's legal costs - a personal victory, Schmeiser said.
Canola, a version of rapeseed, is big business in Canada. Fields across the Prairies gleam bright yellow with it, and nine out of 10 canola farmers now use Roundup Ready canola or other forms of the grain that tolerate herbicides.
Such herbicides kill competing weeds but the canola is left unaffected, increasing the farmer's crop yield.
"This ruling maintains Canada as an attractive investment opportunity," Monsanto's Carl Casale said in a statement.
In 2002, in what was known as the Harvard Mouse case, the Supreme Court of Canada denied Harvard University the right to patent a mouse that was more susceptible to cancer, despite US and Japanese decisions to grant it patent protection.
The court decided then that "higher life forms" could not be patented. It agreed on Friday that plants were higher life forms, but it said that it was the genes and cells in Roundup Ready canola that were patentable.
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