There have been several recent developments in the battle Monsanto is waging to enforce its global intellectual property clamp on genetically modified seeds: * In Canada, the Supreme Court has decided to hear canola farmer Percy Schmeiser's case. * In the United States, soybean farmers are calling on the US government to do something about their Brazilian counterparts, who are growing Monsanto's herbicide tolerant soybeans without paying royalties or licenses. * Also in the US, for the first time, a farmer is going to jail for saving transgenic cotton seed sold by Monsanto. News clips on the three cases follow. TITLE: Patent battle lives on: Schmeiser to take fight against Monsanto to High Court AUTHOR: James Parker PUBLICATION: The StarPhoenix (Saskatoon) DATE: 9 May 2003 URL: http://www.canada.com/saskatoon/starphoenix/info/business/s tory.html?id=96546490-0E9E-4E8F-BA0C-8872AC98F1AB The StarPhoenix | 9 May 2003 PATENT BATTLE LIVES ON SCHMEISER TO TAKE FIGHT AGAINST MONSANTO TO HIGH COURT by James Parker Percy Schmeiser, a self-styled David in the battle over genetically modified technology, will take his struggle against Monsanto to the Supreme Court of Canada. On Thursday, Canada's highest court gave the Bruno farmer leave to appeal a Federal Court of Appeal decision in favour of the giant U.S.-based multinational. Monsanto sued Schmeiser for growing Roundup Ready canola in violation of the company's patent rights. In 2000, the Federal Court of Canada ruled Schmeiser knowingly violated the patent and should pay the company nearly $175,000 in damages. Last year, three judges with the Federal Court of Appeal unanimously upheld the ruling. Schmeiser maintains the Roundup Ready seed blew into his field from a passing truck or his crop was contaminated by pollination in 1997. He has become a folk hero to farm and consumer activists who oppose genetically modified foods and are concerned about the growing power of multinationals. On Thursday, the 71-year-old was unavailable for comment because he was in Rome giving a speech. Monsanto spokesperson Trish Jordan said the company was disappointed the case will proceed to the Supreme Court. No date has been set for the hearing. "But we look forward to completing the final stage. We're confident as we can be that once the Supreme Court has a chance to review the evidence, the two previous rulings will be upheld." Terry Zakreski, Schmeiser's lawyer, said his client will be very pleased with the Supreme Court's decision. "Statistically, they don't give leave to than many cases. That being said, I thought it was a case that was attractive for leave because the legal issues it raises are of national importance." Zakreski said the court will be asked to consider whether patents should be given for plant genes and plants and whether a company enforcing a patent has the right to interfere with a farmer saving and reusing seed. Farmers who sign a technology use agreement with Monsanto are not allowed to save canola seed. Zakreski said he intends to use the controversial "Harvard Mouse" decision in arguing Schmeiser's appeal. Last December, the court ruled Harvard University could not patent a genetically engineered mouse in Canada. In a 5-4 decision, the court decided a living mouse cannot be patented, even if the genes in its cells have been genetically modified. The majority ruled there was a fundamental difference between "lower" and "higher" forms of life. It said Parliament, not the courts, should define what can be claimed under patent law. "The Supreme Court found that higher life forms, such as a plant or a seed, are not patentable in Canada," said Zakreski. "They acknowledged lower life forms would be. In our case, giving a patent over a gene granted (Monsanto) control over the plant and the seed." Zakreski said he will argue Monsanto's patent is invalid or should be interpreted a lot more narrowly. Martin Phillipson, a University of Saskatchewan law professor who specializes in patent law, said he was surprised the Supreme Court would hear Schmeiser's appeal. "I don't think a canola plant or the gene falls into the category of material the Supreme Court would consider unpatentable in (the) Harvard Mouse (decision). The plant breeders rights act allows for intellectual property rights over plants already, although not patents. Unless they are really going to have a radical review, I don't think that (Monsanto's patent) will be the question they will be interested in. I think the legal question will be whether or not Percy Schmeiser used the patented technology." However, Phillipson said there is a possibility the Supreme Court wants to take a clear look at life patents, in general. He said granting Schmeiser leave to appeal makes the situation more uncertain and will put pressure on the federal government to draw up legislation on life patents. Stewart Wells, president of the National Farmers Union and a supporter of Schmeiser, said governments have ignored their regulatory responsibilities while acting as promoters for the biotechnology industry. "This whole thing could have been avoided if governments attached responsibilities and liabilities to patented seed," said the Swift Current-area farmer. "The consequences for farmers are unbelievably negative. You have a huge multinational corporation going around picking off farmers when they think they have a case. Keith Downey, one of the researchers who helped transform the common rape plant into canola more than 25 years ago, said there will be a huge impact on biotechnology research if Schmeiser wins his appeal. "If they overturn that, the biotech companies will not be around in Canada for very long because they won't be able to recover their investments. They will have no protection at all. This becomes very important and a matter of considerable concern." Downey was a witness for Monsanto at Schmeiser's trial. © Copyright 2003 The StarPhoenix (Saskatoon) TITLE: U.S. Farmers Say Brazilians Pirate Monsanto's Gene-Altered Soy AUTHOR: Mark Drajem PUBLICATION: Bloomberg News DATE: 2 May 2003 URL: http://quote.bloomberg.com/apps/news?pid=10000086&sid=al4QL tjW1ci4&refer=latin_america Bloomberg News | 2 May 2003 U.S. FARMERS SAY BRAZILIANS PIRATE MONSANTO'S GENE-ALTERED SOY By Mark Drajem Washington, May 2 (Bloomberg) -- U.S. farmers are urging the Bush administration to take action against Brazil, saying that growers there are pirating Monsanto Co.'s gene-altered soybeans. The U.S. farmers told the office of Trade Representative Robert Zoellick that Brazilians are defying their government's ban on growing genetically modified organisms by planting biotechnology seeds without paying royalties to Monsanto -- and then marketing the crops as "GMO free." "The Brazilian farmers steal the seeds and then sell the crops for a premium," said Ron Heck, a Perry, Iowa, farmer and vice president of the American Soybean Association, which represents 26,000 growers. "It's not a good situation for me, and it's not a good situation for Monsanto." The allegations occur amid growing competition for export sales between the U.S., the largest soybean producer, and Brazil, the second largest. Soybeans were a $15 billion crop in the U.S. last year, second in value only to corn, and exports account for about a third of bushels sold. Many global customers, including China, are reluctant to accept the new technology. Brazil technically bans genetically modified soybeans, although it acknowledges that they have been planted in a region in the south and along the border with Argentina and Paraguay, where those varieties are common. The Brazilian embassy in Washington declined to comment. With the genetic modification, soybean plants are able to resist applications of Roundup, Monsanto's top-selling weed- killer. MORE PIRACY CONCERNS "There are growers who are using the technology without compensating us," Monsanto spokeswoman Lori Fisher said. The company is looking for a solution in Brazil "that is fair to all growers while protecting the intellectual property of our technology." The complaint shows the range of anti-piracy concerns beyond the more typical cases involving movies, music and software. Illegal copies of everything from razors to compact discs cost U.S. companies as much as $250 billion a year, the U.S. trade office said yesterday in its annual assessment of countries' patent and copyright protection. The American Soybean Association accuses farmers in Brazil of taking seeds from harvests in Argentina, where biotech soybeans are legal, and then planting them in Brazil. Farmers in the U.S. pay Monsanto a royalty of $8 an acre for the seeds in addition to the costs of the seeds, the group says. "If you're stealing the technology, you don't have the pay the technology fee," said Peter Thornton, the Asia marketing manager for the group. FALLING SHARE OF EXPORTS The U.S. share of world soybean exports fell to 43 percent last year from 60 percent in 1997 as competition increased from Argentina and Brazil, according to the U.S. International Trade Commission. "The U.S., Brazil and Argentina are the only exporters," said Tim Hannagan, an analyst at Alaron Trading Corp. in Chicago. "They are competing directly with us." Planting genetically engineered crops is supposed to make U.S. farmers more productive. Farmers need to weigh those benefits against the risks that they won't be able to sell their crops in Europe or parts of Asia. U.S. soybean farmers' largest export market temporarily slammed shut in March 2002 when China tightened screening of genetically modified crops, causing a 19 percent slide in U.S. sales of soybeans to China last year. China let imports resume in June as long as shipments had a U.S. safety certificate. The foods also are difficult to sell in Japan. DISAGREEMENT IN BRAZIL "Japanese consumers just won't accept products with genetically modified ingredients," said Yoichi Takemoto, an official at the All Nippon Kashi Association, an industry group representing Japanese confectioners. "They think there's something unsafe about them." Brazil's government is in disagreement over allowing genetically modified crops. President Luis Ignacio Lula da Silva, siding with Environment Minister Marina Silva, said in March the government will enforce the eight-year-old ban. Agriculture Minister Roberto Rodrigues nonetheless says genetically modified soybeans will probably account for about 10 percent of Brazil's exports this year. The government will let those crops be sold rather than pay the cost of compensating farmers for destroying the plants. Silva, a close friend of Lula's, has said she expects the 2004 soybean harvest to be "clean." Many farmers are lobbying to end the ban so they can cut production costs, Rodrigues said. Brazil relies heavily on export revenue to pay its $300 billion debt. © 2003 Bloomberg L.P. TITLE: Farmer sent to prison over cotton seed PUBLICATION: Associated Press news wire DATE: 10 May 2003 SOURCE: The Knox News Sentinel (Tennessee) URL: http://www.knoxnews.com/kns/state/article/0,1406,KNS_348_19 51203,00.html Associated Press | 10 May 2003 FARMER SENT TO PRISON OVER COTTON SEED ST. LOUIS -- The case of a Tennessee farmer opposed to Monsanto Co.'s genetic seed licensing practices could be a first for the St. Louis-based agribusiness giant. Kem Ralph, 47, of Covington, Tenn., was sentenced Wednesday in federal court in St. Louis to eight months in prison for lying about a truckload of cotton seed he hid for a friend. The prison term for conspiracy to commit fraud is believed to be the first criminal prosecution linked to Monsanto's crackdown on farmers it claims are violating agreements on use of the genetically modified seeds. Ralph also admitted burning a truckload of seed, in defiance of a court order, to keep Monsanto from using it as evidence in a lawsuit against him. He pleaded guilty in U.S. District Court in February to lying in a sworn statement in the civil case. At issue is seed-saving, a common agricultural practice of keeping seed from one crop to plant another. Monsanto's licensing agreement forbids it, a policy that some farmers bitterly oppose. In court Wednesday, U.S. District Judge Richard Webber ordered Ralph to serve the prison time and to repay Monsanto $165,649 for about 41 tons of genetically engineered cotton and soybean seed he was found to have saved in violation of the agreement. Monsanto says it has filed 73 civil lawsuits against farmers in the past five years over this issue. Company officials hoped that Ralph's case would send a message to farmers. Monsanto has distributed information about it and about the civil litigation as a warning. Before Ralph's sentencing Wednesday, a Monsanto official told the judge that other farmers would closely watch the outcome. "Their behavior will be set according to the results here today," said Scott Baucum, an intellectual property protection manager for Monsanto. Ralph made no comment in court. His civil case with Monsanto is not over; he has already been ordered to pay more than $1.7 million to Monsanto. But Ralph said in a deposition in 2000 that opposition to Monsanto led to his decision to burn the bags of seed. "Me and my brother talked about how rotten and lowdown Monsanto is. We're tired of being pushed around by Monsanto," he said then. "We are being pushed around and drug down a road like a bunch of dogs. And we decided we'd burn them." Copyright © 2003 The Knoxville News Sentinel Co.