Percy Schmeiser on Patenting Life
November 22, 2006
by William P. Meyers

On Saturday, November 18, 2006 Percy Schmeiser gave a lecture at the Garcia Grange in Manchester, California. This is near Point Arena, where I live, and within Mendocino County, which was the first county in the United States to ban the growth of genetically modified organisms (GMOs), also known as genetically engineered (GE) plants and animals.

Percy Schmeiser is famous in the anti-GMO movement because he was sued by Monsanto after (according to Percy) his crops were contaminated by Monsanto's patented Round-Up-Ready gene, or (according to Monsanto) because Percy, who was a competing canola seed producer, purposefully cultivated Round-Up-Ready canola without permission or paying patent licensing fees. It was, of course, a love fest among the organic-farming crowd, and I learned a lot from Mr. Schmeiser's presentation. However, I just went and looked up the Canadian Supreme Courts judgment in the case (Supreme Court of Canada Schmeiser decision), and there are some real problems with the spin Mr. Scheiser put on his legal case, which I'll come back to later.

There are three major issues with GMOs, in my opinion. They are (1) are they dangerous? (2) should they preempt traditional practices like seed saving? and (3) should genes be patentable?

I think that GMOs can be dangerous in the sense that fire, knives and just about everything can be dangerous. There may be benefits, there are some clear dangers, and there are going to be unexpected consequences. The benefits to Monsanto of selling seeds to farmers and then selling rivers of Roundup to the same farmers are obvious. It has been claimed that lower costs of producing food will benefit the rest of us. But what are the environmental costs of a landscape soaked in Roundup? Evolution tells us that weeds will develop resistance to Roundup, and some claim there is already evidence that this has happened.

Other GMOs may benefit the particular corporations that develop them, or their customers. GMOs that are in effect factories to produce drugs cheaper should be treated differently than GMOs that are released into nature on a massive scale. Of course even drug-biotech GMO's could escape into nature and have unexpected, probably negative, consequences.

All kinds of food crops have been selectively bred (and sometimes bred across species) to benefit mankind with higher yields and other desirable properties. GMOs add a new level of danger because they go beyond what can be done with traditional breeding. The unexpected consequences can therefore go beyond what came from traditional cultivation practices.

Percy made a point I had not heard before. He said that the genes inserted into GMOs mark them as the property of a particular corporation. So if they spread accidentally, the corporation gains property without effort. And it is the nature of flowering plants to spread their pollen far and wide.

This enables GMO patent owners to take away a traditional right, the right to save seed. Monsanto demands that Roundup-Ready farmers sign a contract that forbids them to save Roundup-Ready seed. Well, that is for them to choose to do or not, though they are subjected to great pressure to sign away their traditional rights. But the Supreme Court of Canada said, in effect, that even if you have not contractually signed away your right to save seed, if patented genes are introduced into your crops by wind-born pollenation, the crop is no longer yours. That is really, fundamentally wrong.

Should genes be patentable? Most people vote either yes or no on that question. But I think that the traditional patent wisdom would apply well in this case. If you find something in nature, no matter how novel the discovery, it is not patentable. Patents are for inventions. Following that line of reasoning, genes that already exist in nature should not be patentable. Only if you create a new gene (probably by modifying an existing gene) should the new gene become patentable.

It is also worth remembering that patents are granted for limited periods of time. They grant a monopoly during that time to encourage inventiveness. After the patent expires, anyone can use that knowledge without paying a royalty. Almost all the generic drugs that we now take were patented drugs at one point of time.

If you read the court ruling, you will see that Mr. Schmeiser left out a couple of important facts when he told his story. The courts could be wrong, of course, but they found it to be a fact that he purposefully created a lot of Roundup-Ready seed, and then planted his entire canola acreage with that seed the next year. Now if he wants to claim (and apparently did claim in his court case) that he had a right to save Roundup-Ready seed after his crop was contaminated, that is fine and good. I tend to agree that everyone has the right to save seeds.

But in his lecture he strongly attacked the practice of creating and using GMOs. Apparently that was not his position in 1998, when he purposefully planted a GMO crop.

Certainly Mr. Schmeiser has the right to change his mind. But I think he should be clear, in his lectures, why the court believed he purposefully planted GMOs in 1998. Even, or especially, if he wants us to believe that the court's findings of fact were wrong.