Letter from Dr. Rene Van Acker to the Chief Justice of Canada regarding the Supreme Court of Canada's ruling on the case of Schmeiser vs. Monsanto

The Right Honourable Beverley McLachlin, P.C.

June 16, 2004

Chief Justice of Canada Supreme Court of Canada 301 Wellington St. Ottawa, Ontario K1A 0J1

Dear Justice McLachlin;

I am writing to express concern regarding your recent ruling on the case of Schmeiser vs. Monsanto (May 21, 2004). I was involved in the original Federal case as an expert witness called by Mr. Zakreski to comment on the nature of canola as a volunteer and the possibility of the Roundup Ready transgene appearing adventitiously in farmers fields. Also, my research associate, Lyle Friesen, conducted grow-out tests on seed samples from Mr. Schmeiser's 1997 crop and seed from pod samples from his 1998 crop. A key concern I have relates to a statement of fact on page 1 of your ruling. You state that "Tests of their 1998 crop revealed that 95-98 per cent was Roundup Ready canola." I went back through the original case ruling as well as the appeal and could not find any such proof (there was an abundance of proof of presence of the patented gene and cell but no comment on proportion I the 1998 crop). In addition, our testing of seed from pod samples from the 1998 crop show that the per cent Roundup Ready canola in the 1998 crop ranged from 3 to 67% (see attached summary of test results, attachment #1). It is not clear to me how you came to the conclusion that the 1998 crop had a high proportion of Roundup Ready canola. It is important to consider whether this is fact or not because your argument for sustaining the infringement ruling was based on the stand-by or insurance utility of the Roundup Ready canola in the 1998 crop. The argument for this stand-by utility is weakened if the 1998 crop is not nearly all Roundup Ready canola ( it would not be usefully sold or used as Roundup Ready seed for example because a high proportion of the resulting plants in a subsequently seeded crop would be killed if sprayed with Roundup herbicide). It is also important to consider carefully the evidence regarding purity of the 1998 crop with respect to Roundup Ready canola because if our results are taken to be correct (and there was no argument against their validity in the original case or the appeal) then they show that Mr. Schmeiser could not have sprayed Roundup on the 1998 crop and that Mr. Schmeiser mixed canola seed sources to seed his 1998 crop. Both of these actions suggests no intention on the part of Mr. Schmeiser to use the Roundup Ready canola invention.

I would also like to bring to your attention a peer-reviewed article Lyle Friesen and I have written based on research we had done after the original federal case (see attachment #2). The results of this work show that a majority of non-Roundup Ready certified pedigreed canola seedlots we tested contained Roundup Ready canola seed, in some cases at levels as high as 4.9%. Certified canola seed is produced under strict segregation protocols which include isolation distances for production. Despite these protocols the Roundup Ready transgene has move readily among canola crops and has become relatively ubiquitous in canola seed. It is now difficult for western Canadian farmers whether they grow Roundup Ready canola or not, to keep Roundup Ready canola off of their farms. Your ruling leaves open the possibility for Monsanto to sue most farmers in western Canada for the possession (presence) of their patented entity (Roundup Ready canola) without prior agreement. And you state that the onus is on the person who is in possession to rebut the presumption of use by their actions. It is not clear in the ruling that the presence would have to be of a nature which would suggests the possibility of exploitation or use of the patented entity, nor does the ruling acknowledge that perhaps with patented entities which can self replicate, self disseminate and persist in the environment (and therefore show up where they are not expected or not wanted), there is a problem of patent protection solely on the basis of possession (presence). I urge you to consider my comments perhaps for future rulings and in discussions you may have with your fellow justices and I thank you for your consideration of these concerns.

Sincerely

Dr. Rene Van Acker, Ph.D., P. Ag. Associate Professor, Crop Management and Weed Science