While we all recognize that the Percy Schmeiser case is significant, it turns out that we may be treating it as deciding much more than it really does. In fact, it does NOT say that GE pollen drift is not actionable.

Below is an analysis of the case by a Canadian IPR law professor with whom I have been doing some work, Martin Philipson. It has appeared previously in the June 2001 edition of "Bar Notes", a quarterly publication of the Canadian Bar Association Saskatchewan Branch.

Please note:

1. the suit against Schmeiser was for patent infringement, and as such the issue of intent is immaterial (it plays a role only in assessing the damages). So in all countries, presumably, whether the patented genetic material drifted in or was intentionally planted would not make a difference in determining if there is liability in such a suit.
2. Nonetheless, Schmeiser insists he did not plant the GE canola, although it was not an issue in determining infringement. The judge did note that the amounts found in the field were quite high, and he clearly was skeptical of Percy's claims. Thus, the damages assessed were lower than what Monsanto wanted, but not a symbolic "one dollar" either (which might have been the case had the judge found that there was no intentional planting.
3. Apparently in Canada (certainly in Saskatchewan where Schmeiser's farm is and where the litigation occurred), special legislation designed particularly to protect intensive hog farming has banned all nuisance litigation against farmers (but not necessarily against non-farmer parties like Monsanto). Such legislation does not exist in most/(all?) other countries, so there does not seem to be ANY precedent at all against, say, any organic famer suing Monsanto for pollen drift which compromises the certification of the organic farm, or any non-Canadian organic farmer suing a neighboring farmer who is using GE seed if pollen has drifted over, etc.
4. Indeed, some organic farmers in Canada are considering suing, but given the peculiariites of nuisance law there, they would rely on the provincial environmental protection acts (ie, the introduction of a pollutant/contaminant).
5. Martin refers (next to last paragraph) to "Percy Schmeiser's counterclaim" meaning one that he could bring, but apparently he has not (yet) chosen to do so.

So, a suit in the US or other countries against Monsanto, other corporations, or farmers using GE seed which claims that genetic drift is a nuisance or violates environmental laws should not be barred by the Schmeiser case as a negative precedent. (Of course, there's never any guarantee that any particular lawsuit will be successful.)

Phil

Prof. Philip L. Bereano
Department of Technical Communication
Box 352195
University of Washington
Seattle, WA 98195