SEEDS OF WRATH - PATENT POWER GRAB

The San Francisco Chronicle
DECEMBER 23, 2002,
Agriculture, biotech mix uncomfortably
BY Tom Abate

It's been a tough year for agricultural biotechnology, as evidenced by the pending demise of the research partnership between UC Berkeley and the Swiss firm Syngenta.

The five-year, $25 million deal, which began in 1998 when the sponsoring firm was named Novartis, became the flash point in a debate about whether university researchers were getting hooked on corporate cash.

Last week, Berkeley officials said the deadline for renewal of the deal had passed, and though it could still be extended, it seems the controversial arrangement is ending.

This will probably delight critics and demoralize supporters of genetically engineered foods, and each side will credit -- or blame -- the small but vocal group of opponents based in the environmental movement. But I think it was economics, not politics, that doomed the deal.

Crops are commodities. They are difficult to brand. People pay extra for sneakers with swooshes on them. They are rarely willing to do the same for tomatoes, corn, cotton, soybeans and other crops.

If growers can't brand a product, they can't command a premium price, and if they can't demand a premium, then they're stuck in the commodity business, where nobody wants to be.

Because I don't see much of a business in agricultural biotechnology -- at least not one affecting Northern California -- I rarely cover the issue. Nevertheless, before the year ends I want to brief you on one development related to the issue of branding.

-- SEEDS OF WRATH: Percy Schmeiser may be the world's oldest poster child. This 71-year-old Canadian farmer has traveled the globe telling parliaments and protest crowds how he's been victimized by the bugaboo of agricultural biotechnology, Monsanto.

Schmeiser recently visited San Francisco, where he stopped at The Chronicle to tell me his tale of woe.

Around 1997, genetically engineered canola seeds blew onto his fields. The seeds were bioengineered to withstand the Roundup herbicide, a feature that simplified weed control because an aerial spraying would kill everything but the crop. Monsanto, which developed and sold the seeds, later sued Schmeiser for patent infringement in Canada for growing the plants without buying the seeds.

In 2001, a Canadian judge found that Schmeiser either knew or should have known that he was growing patented seeds that he hadn't paid for and ruled in Monsanto's favor. A Canadian appellate court upheld the trial court ruling. Schmeiser's attorneys recently asked the Canadian Supreme Court to review the case and overturn the lower court rulings.

It may be spring before the Canadian justices decide whether to hear the case. While we wait to learn whether Schmeiser will get yet another day in court, let me explain why two lower courts supported the corporation over the farmer.

Simply put, Percy Schmeiser is not quite the innocent victim he makes himself out to be. The impression he conveyed during our lengthy meeting was that Monsanto's seeds had drifted over from adjoining fields like so many snowflakes, and then sprouted on his land unbidden. After reading the court transcripts and speaking with Schmeiser's lawyer, I think it's a bit more complicated.

It seems that some Monsanto seed did drift over from a neighboring farm that had planted Roundup-ready canola, and the genetically altered seeds grew in Schmeiser's fields. Schmeiser, who saves seed from each harvest to plant the next crop, apparently saved some of the Monsanto seed. He seems to have figured that any plant that grew on his land belonged to him, as did its seed. There's no evidence he sprayed with Roundup to control weeds. So he didn't benefit from the genetically engineered trait that Monsanto has patented.

But he knew that some of his saved seed carried the Monsanto brand, because Monsanto inspectors -- who search for farmers growing its seeds without permission -- warned Schmeiser not to plant the saved seeds. He planted them anyway. Monsanto then sued him for patent infringement.  After reviewing the facts, the trial and appellate courts in Canada found that their countryman had wronged the U.S. corporation, and there's a simple reason for that.

Patents are extremely powerful. When an inventor wins a patent, no other person can duplicate the invention. It doesn't matter if the copycat never saw the invention and came up with the brainstorm on his or her own. The patent gives the first inventor absolute control over the technology for 20 years. No one can produce, use, or sell it without permission.

So the Schmeiser case was simple. Monsanto had a patent on its canola seeds. Some of these seeds grew into plants on Schmeiser's land. He did not buy them. Case closed, Schmeiser loses -- at least in the lower courts where judges do not make the law but simply decide whether certain facts run afoul of it.

But now Schmeiser's appeal is sitting before a court empowered to go beyond the letter of the law and dispense justice. And despite some annoyance at Schmeiser for what I consider to be his less-than-truthful public relations campaign, he stands for principles that must be defended against the encroaching power of the patent.

For thousands of years farmers have saved seeds for replanting. That used to be the only way to get the next crop. Now this ancient practice has come into conflict with modern seed sellers and their patents. Schmeiser grew patented seeds. But he did not steal them from the seed store. Whose fault is it that Monsanto's seeds grew on Schmeiser's farm?

I put the question to Monsanto this way: If the company doesn't want people growing its patented seeds without payment, isn't it the company's responsibility to keep its patented seeds off their property?

It took Harvey Glick, Monsanto's director of global product stewardship, about 45 minutes not to answer the question directly. But what I think he told me in the four pages of notes I took is this: If patented seeds blow over to your land, you'd better pay for them or else ask Monsanto to remove them. If not, the company will sue you.

I hope the Canadian Supreme Court takes the case and puts limits on this patent power-grab. Monsanto should be able to protect its patent against rival companies who would want to steal its technology. Simple laws protect it from farmers who would steal its seed from warehouses.

But seed that drifts through the air, grows into a plant and produces new seed belongs to the person who owns the harvest. We are all familiar with the concept of exempting a practice from a new law, also called grandfathering. Seed saving is so ancient that it is Adam-and-Eved into the fabric of civilization. Schmeiser's right should trump Monsanto's patent.