Legal scholars call for new GM rules to protect farmers

"There is a grave fear that farmers will now feel pressured into buying Monsanto's canola seed because, if they do not, they run the risk of being sued like Schmeiser. The patent holder has no incentive to take responsibility for controlling its technology." - Professor Brad Sherman of the Australian National University in Canberra

Professor Sherman also notes that Australia and Canada, as Commonwealth nations, share the same common law, and so legal precedents, such as the Schmeiser case, can be cited across international jurisdictions. Other Commonwealth nations take note!
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GM Crops Require New Rules to Protect Farmers, Scholars Say
Food Chemical News | August 20, 2001 | Volume 43, Number 27
Mark Thornton

Biotechnology has developed more quickly than the laws governing it, creating huge problems for farmers and the need for new regulations to protect them, according to legal scholars.

Professor Brad Sherman of the Australian National University in Canberra said an early illustration of the problem arose from Monsanto's lawsuit against Canadian farmer Percy Schmeiser for using the company's patented GM canola seeds without permission.

"Despite establishing that Schmeiser had probably not known he was growing Monsanto's canola seed, the court held that by merely growing and selling it he had infringed the exclusive rights of [Monsanto] to use the patented gene and cell," said Sherman, who heads the university's Centre for Intellectual Property in Agriculture.

Sherman said the court's decision marked a radical change in the relationship between land rights and intellectual-property rights. The court ranked Monsanto's patent, or intellectual-property right, above the physical-property right of Schmeiser.

The decision also meant the court failed to recognize that gene replication can occur naturally, without human intervention, Sherman said.

"Monsanto did not want the gene to spread, but the fact it did shows their lack of control over their technology," Sherman said. The court's finding meant the farmer, not patent-holder Monsanto, was responsible for controlling the patented gene.

This counter-intuitive notion raises serious policy questions for lawmakers and regulators in Canada and Australia following the Canadian court's ruling that Monsanto, in effect, had no obligation to control its GM crops, Sherman contended. Australia and Canada, as Commonwealth nations, share the same common law, and legal precedents can be cited across international jurisdictions.

"There is a grave fear that farmers will now feel pressured into buying Monsanto's canola seed because, if they do not, they run the risk of being sued like Schmeiser," Sherman said. "The patent holder has no incentive to take responsibility for controlling its technology."

He said companies developing and patenting genetic information in biological inventions should be subject to new laws governed by a code of ethical standards. Such a code, backed by regulations, would govern any events, predictable or otherwise, that might develop from the technology, added Sherman, who did not suggest what such a code might say.

Charles Lawson, from the university's Genomics Interaction Group, said a judge hearing a patent-infringement case should consider the knowledge - or lack of it - of the defendant.

He said patent law should be made subject to antitrust regulations to prevent biotech companies from having exclusive access to genetic information.

Meanwhile, the legal implications of the Schmeiser case are set to continue. His lawyers have filed an appeal, citing 17 legal issues on which they believe the judge erred.