Has Monsanto Won a Pyrrhic Victory?

Once upon a time in the Greek Mediterranean, many years ago, there was a King named Pyrrhus. His armies fought a battle at Asculum in the region of Apulia. He won the battle but the casualties were so high that his army was almost eliminated. His victory cry was so poignant, it has survived for thousands of years: “One more such victory and we are lost”!

Ever since then, a victory gained at too great a cost has been known as a Pyrrhic victory. Has Monsanto won a Pyrrhic victory?

In the battle between the biotech giant Monsanto and the Saskatchewan farmer Percy Schmeiser, the Supreme Court of Canada has declared Monsanto to be the victor. By the same 5-4 margin that defeated the claim of Harvard to patent its genetically modified mouse in Canada, the Court found that Monsanto had a valid patent on the genetically modified genes contained in Roundup Ready Canola. It also found that their patent had been infringed when Percy Schmeiser saved seeds from plants that survived the spraying of Roundup herbicide, replanted them, harvested them and sold the seed, all without signing a Technology Use Agreement with Monsanto or paying them $15 per acre as required.

While the Court found that Percy Schmeiser used the GM seed, it also found that he did not profit from this use and so reversed a lower court ruling awarding Monsanto damages and declined to award Monsanto court costs for the case. So, Monsanto won no money from the case, spent close to $1 million prosecuting the case and received negative publicity worldwide for over five years for pursuing it.

Furthermore, they have declined to proceed with the introduction of Roundup Ready Wheat though they carefully refuse to say that will never happen. How much has this cost them? According to the court documents, in the year 2000, up to 5 million acres in Canada were planted to Roundup Ready Canola, 40% of Canada’s Canola crop that year. At $15 per seeded acre, Monsanto earned $75 million in Canola licensing fees, not including the revenue from selling seed or from selling the herbicide. Conceivably, they could have earned much more from wheat, still the dominant crop in western Canada.

Later this year the Schmeiser case may boomerang on Monsanto as organic farmers in Saskatchewan proceed with their class action alleging that Monsanto and Aventis have contaminated the fields of organic canola growers with genetically modified strains on which these companies hold the patents. If patent holders have the legally enforceable right of monopoly over their creations, are they also liable for the damage these new genes do?

When I was about 8 years old my mother parked her station wagon under a shady tree on a downhill slope while she played tennis nearby. My younger brother and I were left in the car to play. I played the driver! You can imagine what happened. Without turning on the engine, I managed to shift the car into neutral. As my mother practiced her backhand, her car and precious cargo silently accelerated into the nearest lamppost. My mother owned the car. Even though she wasn’t driving it, she was liable for the damages resulting from its use. I no longer recall whether my mother won her tennis match, but if she had, it too would have been a pyrrhic victory.

First Published in June 2004