Agriculture, biotech mix uncomfortably

Posted by ryan griffis | Tue Dec 31st 2002 1 a.m.

The San Francisco Chronicle
DECEMBER 23, 2002,
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.

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