The verdict from the Canadian Supreme Court is in: Schmeiser is guilty and
his previous conviction by Judge MacKay of patent infringement has been upheld.
The only thing the SCOC granted to Schmeiser was relief in paying Monsanto the
profits from his illegal, pirated canola crop a total relief of $19,832 Canadian
($15,000 US based on latest exchange rate).
After setting aside the award of profits, the Court stated: "in all other
respects, the trial judge's order is confirmed."
Sorry Schmeiser! This is a major victory for Monsanto, for farmers, and a
much-needed final blow to Schmeiser's lame claim to victimhood at the hands of a
cruel biotech Goliath. Every court in the land of Canada has now ruled that
Schmeiser knowingly and illegally stole Monsanto's lawfully-owned technology.
A couple of key excerpts from the ruling in the first appeal of his conviction
that was considered by the SCOC:
-- "The Trial Judge found as a fact that Mr. Schmeiser knew or should have
known that those plants were glyphosate-resistant when he saved their seeds in
1997 and planted them the following year. It was the cultivation, harvest and
sale of the 1998 crop in those circumstances that made Mr.
Schmeiser vulnerable to Monsanto's infringement claim." (Translation:
after being warned that his crop was Roundup tolerant and patented, Schmeiser
knowingly planted the seeds the next year anyway)
-- "The Trial Judge correctly concluded that Monsanto had not breached the
August 12, 1998 court order by taking crop samples from Mr. Schmeiser's fields
for testing. Mr. Schmeiser admitted that he had been advised of the sampling
before it was done, and the evidence disclosed no reason to believe that he
could not have accompanied the Monsanto representatives if he had wished to do
so. Moreover, the Trial Judge did not err in admitting the testing evidence from
the roadside samples or the samples from the Humboldt Flour Mill obtained
without Mr. Schmeiser's consent." (Translation: Monsanto did nothing wrong
in gathering information via court order to prove Schmeiser's illegal acts)
-- "The Trial Judge quantified the profit from the sale of the 1998 crop at
$19,832 and granted Monsanto an injunction. . . . Monsanto was entitled to some
assurance that Mr. Schmeiser would not repeat the actions that have been
established to be an infringement of the Mansanto patent. The injunction granted
by the Trial Judge gave that assurance." (Translation: Schmeiser can't do
it again)
-- "The Trial Judge was correct in saying that it is the profit from the
sale of the infringing crop that Monsanto may claim, not the difference between
that profit and the profit from the sale of an alternative crop that was not
grown. In an accounting of profits for patent infringement, the patent holder
has the onus of proving the amount of the gross revenue made from the acts of
infringement. The infringer has the onus of proving the costs incurred to obtain
the profits. Generally, the only costs to be taken into account are those
directly associated with the infringing activity. The award of profits as a
remedy for patent infringement is an equitable remedy."
By tossing out the award of profits ($15,000 US), the court returned the verdict
against Schmeiser to the core in patent infringement: damages sustained by the
patent holder from the infringement of the patent. According the appeals
court, "Under subsection 55(1) of the Patent Act, a person who infringes a
patent is liable for all damages sustained by the patent holder by reason of the
infringement. The Court may also, under subsection 57(1), grant other remedies,
including an injunction and, in lieu of damages, an accounting of the profits
from the infringement."
So they threw Percy a bone, but made clear the Court's position that Monsanto
has a legal and enforceable patent on the gene.
Justice is done.
by Alex Avery , Center for Global Food Issues, Hudson Institute
Reprinted from "AgBioView" <agbioworld@yahoo.com>
email list. 22 May 2004
