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WITH consumers still wary of genetically modified produce, traditional
farmers whose crops become laced with GM varieties risk losing their markets. So
here’s an important legal question: who is liable when GM seeds drift across the
landscape and take root in an unsuspecting farmer’s field?

Common sense suggests that if anyone is to blame it should be the company
that produced the GM seed. To have it the other way round, and make farmers pay
the seed companies, would be perverse, right? Yet that is what a landmark legal
ruling in Canada has now decided
(see p 13).

The case has been a classic David-versus-Goliath battle, pitting prairie
farmer Percy Schmeiser against the might of Monsanto. When the company’s
herbicide-resistant oilseed rape turned up in Schmeiser’s fields a few years
ago, he said it got there accidentally and spread under its own steam. Monsanto
claimed he was deliberately cultivating the GM seed and should therefore pay for
the privilege. The judge went further: Schmeiser—and farmers like
him—should pay up even if there was no cultivation and the GM seed really
was delivered by the birds or the bees or the wind.

In the crazy world of gene patents, the judge has done us all a service. By
diligently applying the letter of the law, he has exposed the ultimate absurdity
of allowing companies to hold patents on living organisms that cannot be
controlled.

Patenting vacuum cleaners, microchips and pharmaceuticals makes sense because
they cannot replicate and spread themselves around the landscape. In many parts
of North America, farmers can no more stop GM seeds and pollen wafting onto
their land than Canute could hold back the tide. What’s more, a stand of GM
oilseed rape looks just the same as the conventional crop. There is no patent
number on the stems or leaves. How are farmers to know they are growing
someone’s intellectual property?

The absurdity shows up too in the cloak-and-dagger measures Monsanto had to
take to gather evidence on Schmeiser. Encouraging farmers to snitch on their
neighbours and sneaking around fields bagging crop samples are not the
ingredients of a progressive PR policy. The company’s ample resources would be
better spent developing more sophisticated GM crops that cannot release seed or
pollen. And cannot land farmers in court.