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Monsanto Canada Inc. and Monsanto Co. have sued a Canadian farmer, alleging infringement of a patent related to the company’s genetically altered seeds ( Monsanto Canada Inc., et al. v. Percy Schmeiser, et al., No. T-1593-98, Canada Fed.). Monsanto claims that Percy Schmeiser knowingly planted its Roundup Ready brand of herbicide-resistant canola on his farm without permission in 1998. Schmeiser contends that the seeds for that year’s crop came from his own fields and that they were either contaminated by pollen from neighboring fields or by seed blowing off trucks passing his land. In closing arguments following a recent 2-1/2-week hearing, Schmeiser’s lawyer, Terry Zakreski, argued that Monsanto lost its exclusive rights to the patent on the canola gene when it was released into the environment. “They cannot put the genie back in the bottle,” Zakreski told Justice Andrew MacKay of the Federal Court of Canada. “Once it’s out, it’s out everywhere.” The attorney pointed out that farmers are allowed to keep seed from their own crops to plant the following year. While Monsanto requires farmers who grow the disputed canola to sign an agreement stating they won’t keep the seed, the company doesn’t have any power over those farmers who don’t buy the seed. INFRINGEMENT DENIED According to Zakreski, the simple presence of the Roundup Ready canola in his client’s field doesn’t constitute patent infringement because Schmeiser never sprayed his crop with the herbicide. Roger T. Hughes, Monsanto’s senior counsel, said in his rebuttal that Schmeiser “had defiantly and stubbornly refused to acknowledge the simple fact that by having this crop on his land in 1998 he has infringed the patent.” Arthur Renaud, another attorney for the plaintiffs, told the court: “In [Schmeiser's] opinion, in late summer of 1997 he had a ‘contaminant’ on his property and [he decided] to harvest the ‘contaminated’ area anyway and use that for all or almost all of his 1998 seed.” The company attorneys said samples of canola taken from the right of way beside two of Schmeiser’s fields in 1997 tested nearly 100 percent Roundup tolerant. They said Monsanto scientists determined that those seeds planted for the 1998 crop also registered up to 99 percent tolerant to the herbicide. Zakreski pointed out, however, that the scientific tests were done by the company itself rather than by an independent lab. “This was a Monsanto internal test,” he said. “We have reason to question it. Their entire case is built upon it.” DAMAGES SOUGHT Monsanto is seeking up to $400,000 in damages: at least $15,450 based on a $15 per acre fee which Schmeiser would have paid had he signed a technology use agreement; $105,000 it estimates Schmeiser made on his 1998 crop; $25,000 to deter other farmers from doing the same thing; and legal costs which Hughes calculated could reach $250,000. Schmeiser filed a $10 million countersuit a year ago claiming defamation of character, trespass and ecological havoc. Monsanto admitted to using private investigators to check out tips it received from Schmeiser’s neighbors and to patrolling grid roads to take crop samples from his fields to look for hijacked DNA. ‘COMPLETELY UNETHICAL’ Schmeiser called those methods “completely unethical” and accused the company of trespassing. “You can just imagine what would happen if I went onto one of their fields and took some of their seed,” Schmeiser said. In addition to Hughes and Renaud, Monsanto is represented by L.E. Trent Horne of Sim, Hughes, Ashton & McKay in Toronto. � Copyright 2000 Mealey Publications, Inc.

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