Hope Not Hype - Third World Network

158 Hope Not Hype
developer, Aventis. This suggests that consumers may have grounds for compensation, at
least in the US, even if their health is not affected by the transgenic crop (Kershen, 2004).
Canada: Percy Schmeiser
In 1998, Canadian farmer Percy Schmeiser was prosecuted by Monsanto Canada
after GM canola was found growing on his farm. Although the courts acknowledged that
this was the result of wind-based seed contamination, the mitigating circumstances were
deemed insignificant defence for the patent infringement case. Schmeiser found 60% of
the crop survived after spraying with Roundup herbicide, confirming his suspicions that
Roundup Ready canola was present in his crop. He harvested and stored the seed from the
area he had sprayed, using this seed in 1998 for his new crop. Despite the innocent origins
of the seed, the court found that Schmeiser “knew or should have known that he was
planting Roundup Ready canola”, with his behaviour disqualifying him from “innocent
grower” status (Kershen, 2004, p. 462). The legal impact of Schmeiser having knowledge
of the contamination was left ambiguous at the time, because “[t]he court left undecided
whether Monsanto would have an infringement claim against a truly innocent grower”
(Kershen, 2004, p. 462). However, the irrelevance of the cause of contamination – whether
through pollen drift, seed dispersal from transportation, or potentially even covert planting
from an outside farmer or supplier – highlights the need for increased vigilance, monitoring
and quality legal advice for all farmers, regardless of whether they choose to enter into an
agreement with a supplier.
Patent thickets (Thomas, 2005)
Intellectual property protection includes particular genes and plant varieties as well
as techniques for creating transgenic plants and product ideas, such as the use of Btsourced
Cry toxins as a plant-expressed insecticide. “A company that has the rights to a
species of Bt toxin protein can still be subject to another company’s broad patent rights on
Bt toxin technology” (ISB News, 2005). Determining who owns such transgenes is critical
because multiple companies market versions of Bt toxins in cotton, soybean, maize and
possibly other products in the future. Both public and private institutions that are developing
GM crops are thus likely to stumble into a patent thicket: described as a network of
intellectual property claims that make achieving a licensing agreement difficult if not
impossible.
In 2002, Syngenta claimed that Monsanto, DeKalb Genetics (a subsidiary of
Monsanto), Pioneer Hi-Bred International, Dow Agrosciences LLC, and Mycogen Seeds
(a subsidiary of Dow) infringed on patents owned by Syngenta that describe synthetic
transgenes based on cry genes. However, in 2004 a US Federal judge ruled that Mycogen
Seeds invented Cry1F, a gene product based on an insect toxin first isolated from the
bacterium B. thuringiensis. Syngenta and Pioneer reached an out-of-court licensing
arrangement. Monsanto and Dow prevailed in court. Subsequently, the US Patent and
Trademark Office eliminated 12 of 14 claims in a Mycogen patent because it determined
that Monsanto had prior ownership. That ruling was then disputed by Mycogen. A flurry