"David Hare-Scott" wrote in message
...
gunner wrote:
"Gary Woods" wrote in message
...
"Steve Peek" wrote:

The real problem is that when you grow your open pollinated corn
downwind of
the frankinstein corn, your seed becomes tainted. You should be
able to sue
Monsanto for damages.

You've got it backwards. You'll get sued for having Monsanto's
patented genes in your crop.
I'm not making this up.
Google "Percy Schmeiser."


Just curious to know if you have ever read the Court decisions ?

Not in the original but my understanding is that Schmeiser was found to
have infringed Monsanto's patent by knowingly growing GM plants without
paying monsanto's license. Is that right?

David


Yes, in the broad sense. My question was actually for Gary and Steve,
David. Your response was very accurate. I just assumed you had read them.

Federal Court Trial decision:
http://decisions.fct-cf.gc.ca/en/200...001fct256.html

Supreme Court of Canada's decision:
http://scc.lexum.umontreal.ca/en/200...2004scc34.html

As you said, it is established Case law in both the US and Canada. When
you don't have a license to use a patent, you run the risk of being sued.

There is a lot of hyperbole about ole Percy, which is understandably a part
of the "he said, she said" of any legal dispute. Regardless of his being an
upright citizen, the many "case summaries" on the Internet and here do not
jibe with the actual courts records.

The Federal Court outlining Mr. Schmeiser's farming practices is an
interesting read. However, one could just read the salient points from the
CA
Supreme Court Document and then follow the arguments to get a good
understanding of the issues. I encourage all to read both of them in
their entirety (one pagers). Here are some excerpts for those who want
just a Reader's Digest version:

The Supreme Court of Canada's decision:

6 Schmeiser never purchased Roundup Ready
Canola nor did he obtain a licence to plant it. Yet, in 1998, tests
revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up
of Roundup Ready plants. The origin of the plants is unclear. They may
have been derived from Roundup Ready seed that blew onto or near Schmeiser's
land, and was then collected from plants that survived after Schmeiser
sprayed Roundup herbicide around the power poles and in the ditches along
the roadway bordering four of his fields. The fact that these plants
survived the spraying indicated that they contained the patented gene and
cell. The trial judge found that "none of the suggested sources [proposed by
Schmeiser] could reasonably explain the concentration or extent of Roundup
Ready canola of a commercial quality" ultimately present in Schmeiser's crop
((2001), 202 F.T.R. 78, at para. 118).


87 However, the appellants in this case
actively cultivated canola containing the patented invention as part of
their business operations. Mr. Schmeiser complained that the original
plants came onto his land without his intervention. However, he did not at
all explain why he sprayed Roundup to isolate the Roundup Ready plants he
found on his land; why he then harvested the plants and segregated the
seeds, saved them, and kept them for seed; why he next planted them; and
why, through this husbandry, he ended up with 1030 acres of Roundup Ready
Canola which would otherwise have cost him $15,000. In these circumstances,
the presumption of use flowing from possession stands unrebutted.



96 The appellants argue, finally, that
Monsanto's activities tread on the ancient common law property rights of
farmers to keep that which comes onto their land. Just as a farmer owns the
progeny of a "stray bull" which wanders onto his land, so Mr. Schmeiser
argues he owns
the progeny of the Roundup Ready Canola that came onto his field. However,
the issue is not property rights, but patent protection. Ownership is no
defence to a breach of the Patent Act.


I would not think Ole Percy's argument is a cause celebre for the Eco
argument, regardless of how the issue is spun.

As for the business practice, yes that will have to be addressed. I suspect
by the courts or a change in the law. That was a slick trick to openly
license to so many researchers thereby prohibiting further use. Still, the
issues need to be defined, not speculated on as shoulda, coulda, maybe.