Below (item 1) is a response from Phil Bereano, Professor of Engineering (technology and public policy) at the University of Washington, to the Canadian ISP article we circulated, "Monsanto Victory Plants Seed of Privatisation".
http://www.lobbywatch.org/archive2.asp?arcid=4484

Item 2 is an article on the Schmeisser judgement, published in the current edition of GeneWatch, by Phil Bereano and Martin Phillipson, a Professor of Law at the University of Saskatchewan.

1.RE: article on the Schmeiser case
2.Goliath v. Schmeiser
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1.RE: ...article on the Schmeiser case: here is a posting I did to US groups circulating this article:

If one READS the Schmeiser decision, I think you'll see that the Court specifically says that the Seed Saving statute is still valid. Leask is wrong, and is misleading the press (spin, I guess) because he is representing the industry (and we know what their standards of morality are). BTW, Percy was not found to have infringed because he SAVED the seed but because he SOLD it (illegal under that Act); I am not an expert on the treaty, but it doesn't seem to me that the decision is inconsistent with
that agreement. Did Percy try to raise the Treaty in his defense? (in the adversarial system, if he didn't it would be unlikely that the Supreme Court would do so on its own. although it could).

So the industry is gearing up to get evermore (so, what is new?) But the Ag Dept can't change a statute (altho it can try to bend regulations, etc.) -- only the Parliament can do that. I don't denigrate the strength of the industry in lobbying etc, but what this means is that there is a political struggle ahead.

Does anyone expect that our successes are not going to be fought by the industry? Shouldn't our focus be on how to fight them instead of endlessly lamenting over something that wasn't really that bad. Why do we not fight characterizing the case as "a Monsanto victory" -- as I pointed out before, when it was a fait accompli, the industry called the Cartagena Protocol an industry victory!

Why are we dumping on the Canadian Supreme Court (which has ruled that neither plants not animals are patentable -- far, far better doctrine than the legal situation here in the US). I mean, Rene Van Acker may be a University of Manitoba agricultural expert, but he doesn't know squat about legal systems. Writing to the Supreme Court that they are wrong? Can you imagine me writing to the US Supreme Court to let them know that Justice Clarence Thomas is wrong about the effect of affirmative action on students of color!! Or Pat Robertson writing to Justice Kennedy to tell him that, despite the gay male couple the Justice and his wife socialize with, he is wrong in believing that gay people deserve equal rights to straight ones?

The Schmeiser case is OVER; can we get over it?
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2.Goliath v. Schmeiser
by Phil Bereano & Martin Phillipson
Volume 17 Number 4
http://www.gene-watch.org/genewatch/articles/17-4Bereano.html

Are genes patentable? Are transgenic plants and animals patentable? In the United States the answers are affirmative, and over the past two decades the US has pressured other countries to adopt the same sort of patent rules. Yet, two years ago, in President & Fellows of Harvard College v. Canada, the so-called "Harvard Mouse" case, the highest Canadian court held that “higher life forms” could not be subjected to patent monopolies.

This spring, the Supreme Court of Canada rendered judgment in another closely followed case: Monsanto’s suit against Percy Schmeiser, which alleged that the Saskatchewan farmer had infringed their patent on Roundup Ready canola. The result was mixed. The Court affirmed the Harvard ruling that plants are not patentable in Canada, but said that genes are. Schmeiser, though he had infringed, was not held responsible for monetary damages.

In 1993 Canadian Patent No. 1,313,830 was issued to Monsanto Canada for "Glyphosate Resistant Plants." However, the patent did not cover the plants themselves, but only the process by which genes resistant to herbicides (in this case, Monsanto's own Roundup) were developed, as well as the modified genes and cells. By the year 2000, forty percent of all canola grown in Canada was "Roundup Ready."

In order to use Roundup Ready canola, farmers must sign a Technology User Agreement (TUA), paying a royalty fee of $15 per acre to Monsanto Canada, agreeing not to save and replant seed, promising to use Roundup herbicide, and allowing Monsanto to inspect their crops in order to verify compliance with the terms of the TUA.

On March 29, 2001 a trial judge found Schmeiser to have committed multiple infringements of Monsanto’s patent and fined him $20,000, asserting that the levels of Roundup Ready Canola on Schmeiser’s property were such that he "knew or ought to have known" that his crop was planted with Roundup-ready seeds. Since Schmeiser had no agreement with Monsanto, he was guilty of using their patented product without a license.

The findings of fact of the trial judge are crucial to the overall outcome of the legal battle between Monsanto and Schmeiser. Generally, once a trial judge has made findings of fact, appellate courts will overturn them only in exceptional circumstances. Appellate courts only have the original transcripts of the trial before them and there are no new witnesses present or new evidence accepted.

Although discussions of Monsanto v. Schmeiser have been based on wildly diverging versions of "what actually happened," the only version of events that matters legally is the one accepted by the trial judge. The Supreme Court highlighted the most significant aspects of this factual history in paragraphs 59-68 of its judgment:

In 1996 Mr. Schmeiser grew canola on his property on Field Number One, the seed which was the subject matter of Monsanto's allegations could be traced to this 370 acre field on Mr. Schmeiser's property. . . . [I]n the Spring of 1997, Mr. Schmeiser planted the seeds saved from Field Number One. He sprayed a 3 acre patch of this field with Roundup and found that 60% of the plants survived, a clear indication that these plants contained Monsanto's patented gene and cell. . . . [I]n the fall of 1997 Mr. Schmeiser harvested the Roundup Ready Canola from the 3 acre patch he had sprayed with Roundup. He did not sell it. He instead kept it separate, and stored it over the winter in the back of a pick-up truck. A Monsanto investigator took samples of canola from the public road allowance bordering two of Mr. Schmeiser’s fields in 1997, and all samples contained Roundup Ready Canola. In March 1998, Monsanto put Mr. Schmeiser on notice of their belief that he had grown Roundup Ready Canola without a license. Mr. Schmeiser nevertheless took the harvest he had saved in the pick-up truck and had it treated for use as seed. Once treated, it could be put to no other use. Mr. Schmeiser planted the treated seed in nine fields, covering approximately 1000 acres in all. Samples were taken from the canola plants grown from this seed . . . and a series of independent tests by different experts confirmed that the canola Mr. Schmeiser planted and grew in 1998 was 95-98% Roundup resistant.

The trial judge found that there was no other "reasonable explanation" for the concentration or extent of Roundup Ready canola of commercial quality evident from the results of tests on Schmeiser's crop. Given these uncontested (according to the Court) findings of fact, the only legal issue to be decided by the Supreme Court was whether these actions amounted to "use" of Monsanto’s patented genes and cells, and whether (in the wake of the Harvard Mouse case) Monsanto's patent was invalid as constituting a patent over a "hi