ROUNDING UP THE SCHMEISER CASE: BENEFIT AND LIABILITY ISSUES OF TRANSGENIC CROPS
For thousands of years, it has been common practice for farmers to keep the best seeds from their fields for the next growing season. This has allowed them to develop breeds of high quality, high yields and nurture those adapted to the local conditions. Trading seeds with other farmers is also a secular tradition that is important for maintaining a diverse genetic background within a field. So when Percy Schmeiser, a 59 year old Saskatchewan farmer, inadvertently found that some of his canola plants that boarded a local road, were resistant to a herbicide purchased to get rid of the weeds growing around telephone poles, he did what millions of farmers had done before him: he collected some seeds and added them to his pool of grains of highest quality for future growing seasons. To his surprise, a year later, he received a letter stating that the biotech company Monsanto was suing him for $300,000 due to the unlicensed use of its herbicide-resistant canola. Consequently, this began a 6 year judicial battle that became a principle symbolic cause for farmer’s rights, that also set the ground for Canada’s position toward genetically modified (GM) organisms  .
Essentially, the conflict revolved around the use of Roundup Ready canola, a new special line of GM plants released by the agrochemical company Monsanto. This particular canola was designed to be resistant to the herbicide Roundup which is chemically based on a compound known as glyphosate, also produced by Monsanto. When Roundup is sprayed on undesired weeds, glysophate penetrates inside the plant cells and works to block the activity of an enzyme called EPSPS. This enzyme is involved in the synthesis of certain amino acids that are essential for plant protein production and therefore are crucial for growth and survival. In essence, the presence of glysophate rapidly leads to the death of the weed. Furthermore, one of the greatest advantages of this system is that EPSPS, the enzyme inhibited by glysophate, is present in plants and bacteria but not in animals. As a result, the Roundup herbicide is harmless to any human or wild animal that may consume it. In fact, because of its efficiency and its specificity, Roundup is one of the most widely approved herbicides around the world .
Roundup Ready plants (which include soybean, corn, canola and cotton) were also developed in conjunction with the herbicide in the 1990’s, and are essentially made to be resistant to glysophate. This consequently allows farmers to get rid of undesirable weeds by massively spraying their fields with the benefit of no worry of killing their own crop. To obtain such plants, Monsanto’s scientists first found a species of bacteria that harboured an EPSPS enzyme that not only continued to perform its role in amino acid synthesis, but that was also resistant to glysophate treatment. They then isolated this EPSPS gene and modified it accordingly so that it could function effectively in plants. Finally, this modified EPSPS gene was then inserted into a plant genome, and characterized extensively so that researchers were convinced that: first, it performed its synthesis role efficiently; and second, it confer Roundup resistance to the transgenic plant..
Of course, laid down in such simple words, the whole procedure appears remarkably straightforward. However, in reality, the Roundup Ready plants resulted from many years of research and development by Monsanto’s scientists. Consequently, it seems reasonable that Monsanto was now hoping to get paid back for the time and money invested in the development of such useful plants. But unfortunately for them, plants are not like prescription drugs or other patented devices, where consumption occurs only once – they are a living organism that reproduce and set seeds, and these in turn can be grown again to obtain exactly the same plant, with the same patented gene. In order to ensure that they can enjoy the full benefit of their product, Monsanto makes sure that farmers sign a Technology Use Agreement (TUA) upon purchase of the Roundup Ready seeds. The TUA is a license that allows farmers to use the Roundup Ready technology with a number of rules to be followed. For instance, the farmer is not allowed to save Roundup Ready seeds for replanting or for inventory, nor will he be permitted to give out seeds to other farmers. To enforce this contract, Monsanto regularly samples fields to check for unlicensed growth of Roundup Ready canola. The company even has a toll-free phone line where people can call to report suspicious use of Roundup Read  .
This very phone line resulted in a tip that led to Monsanto investigating the Schmeiser farm. In 1998, they found that 95-98% of the canola grown on his farm was unlicensed Roundup Ready canola. Schmeiser said that in fact, he never wished to grow Roundup Ready. To his defense, Schmeiser argued that the GM canola seeds ended up on his field by accident, probably by falling from a truck. Because he did not know that he was growing Monsanto seeds and in fact, never even sprayed his fields with Roundup, he therefore was not infringing Monsanto’s patent. On Monsanto’s side, the argument was that it was highly improbable that Schmeiser did not know about Roundup Ready canola, given its popularity and the publicity around it. They claimed that Schmeiser willingly grew Roundup Ready without a license, and that by harvesting and selling the resulting grain, he made a profit from which Monsanto should have benefited [1, 2, 5]. These claims, arguments and counter arguments continued for 6 years, involving hearings in front of three different courts. Finally, in May 2004, the Supreme Court of Canada ruled against Schmeiser, stating he had violated the company’s rights by growing the GM plants without a license. However, the court also overturned a previous judgement that ordered Schmeiser to pay back the sales profit to Monsanto and to pay for the company’s legal fees [5, 6].
Despite its controversy, the Supreme Court’s decision is likely to make history because it is one of the first to debate intellectual property on genetically modified plants. On a somehow similar matter, the same court had ruled in 2000, against the patenting of the so-called “Harvard” mouse. In that case, the judges refused to grant a patent to Harvard University for the development of a transgenic mouse with special characteristics that could be of great use in cancer research . Despite the fact that it took years of research to obtain the mouse, the court stated that such a higher form of life could not be patented. During his trial, Schmeiser used this particular case to suggest that despite Monsanto’s holding of a patent for the gene responsible for glysophate resistance, it could not claim to have property rights on the plants containing the patented genes, when the plants themselves are not being used to exploit the benefits given by the gene. However, the Supreme Court ruled that since Monsanto holds a patent for a gene inside canola seeds, it therefore also has full control over the use of the plant .
In practical terms, one could say that this is not very far from having a patented plant. As a result, the court has set the groundwork for a system where a biotech company can claim rights and royalty payments on any organism that bears their patented gene, whether it is in the possession of someone who is aware of it or not.
Perhaps more interesting, is the notion that with such a strict level of control over the benefits from its products, biotech companies should in turn also be accountable for the damage, even accidental, caused by their products . In the case of GM plants, the engineered trait can easily escape out of the company’s control through a variety of mechanism such as seeds inadvertently spreading out in neighbouring fields or through cross-pollination with non-GM plants of the same species or not. This creates the potential for numerous liability issues. For instance, the wide use of transgenic canola in western Canada has made it practically impossible for organic farmers to propose certified GM-free canola. The market losses resulting form this are estimated to $100,000 to $200,000 a year, without taking into account potential growth of the market resulting from growing consumer concerns about GM food . In this respect, two organic farmers had filed a lawsuit on the behalf of all Saskatchewan certified organic farmers against the biotech giants Monsanto and Aventis for the damage caused by the release of transgenic canola. In the same manner, the European Union had recently banned Canadian honey from its imports because of the inability of the producers to guarantee that it does not contain pollen from GM plants not yet approved in Europe .
In many ways, the growing place of GM crops in our agricultural system poses the same kind of problem as music sharing programs on the internet for the music industry. In that both technologies exploded before the legislation system could even understand what they were exactly. From the Schmeiser case and the growing number of legal imbroglios created by the use of patented transgenes in agriculture, it appears clear that there is urgent need for new regulations concerning benefits and liabilities of GM plants. In particular, biotech companies should take significantly more responsibility towards the plants they release on the market and set up stricter procedures in order to contain their products. Furthermore, public institutions and governments should establish clear legislation on GM crops that effectively enforce the intellectual property right of biotech companies, but that also prevents damage on the environment and on non-GM markets.
1. Broydo, L., The trouble with Percy. 2000, Mother Jones
2. Online, C.N., Percy Schmeiser’s battle. 2004, CBC News Online.
3. Monsanto, Backgounder – A story of Monsanto’s glysophate herbicides. 2002, Monsanto.
4. Monsanto, Roundup Ready corn: food and feed safety, Monsanto.
5. Edwards, A., Monsanto v. Schmeiser. 2004, Centre for Innovation Law and Policy: Toronto
6. Kondro, W., Canada. Monsanto wins split decision in patent fight over GM crop. Science, 2004. 304(5675): p. 1229.
7. Kondro, W., Canada’s supreme court rejects broadcaster’s appeal on doctors’ libel verdict. Lancet, 2002. 359(9312): p. 1132.
8. Smyth, S., G.G. Khachatourians, and P.W. Phillips, Liabilities and economics of transgenic crops. Nat Biotechnol, 2002. 20(6): p. 537-41.