Ill wind blows through crop suit.

Byline: GUEST VIEWPOINT By Keith Aoki For The Reguster-Guard

A 73-year old Canadian canola farmer has been sued for patent infringement by Monsanto, the agrochemical giant. The case has important implications for Oregonians.

For 53 years, Percy Schmeiser has raised canola, using millennia-old farming techniques of selecting and saving seed at the end of each growing season to plant the next.

In the mid-1990s, Monsanto patented and introduced canola that is genetically engineered to be resistant to the company's Roundup, a potent broad-spectrum herbicide. Roundup kills all plants - except those engineered to be resistant to its effects. By 1997, 30,000 Canadian farmers were planting Roundup Ready canola, including Schmeiser's neighbors.

These farmers signed restrictive licensing agreements with Monsanto, promising not to save any patented seed to plant next year.

Although Schmeiser didn't switch to patented seed, wind-borne pollen from his neighbors' genetically engineered canola out-crossed with Schmeiser's crop. When Schmeiser saved his seed, a neighbor alerted Monsanto that Schmeiser was saving genetically engineered canola. Monsanto investigated, taking samples of Schmeiser's crop from the milling plant where it was processed. Lab results showed Schmeiser's crop contained Monsanto's patented genes. Monsanto sued Schmeiser in Canadian court for patent infringement.

In 2001, Schmeiser lost his case at trial court. He was ordered to destroy his entire crop and pay Monsanto's attorney fees. The Canadian Appeals Court affirmed the lower court's finding. In January 2004, the Canadian Supreme Court heard Schmeiser's case, with a decision expected by this summer. If Schmeiser loses, he faces more than $1.2 million in fines.

Percy Schmeiser's case raises several important questions, from the global to the local.

First, a Canadian Supreme Court decision in Schmeiser's favor, reversing lower-court rulings, may slow the spread of genetically engineered crops until it can be more conclusively demonstrated that they pose no threat to human health or the environment.

This is the "precautionary principle": the idea that new technologies should be widely adopted only after their safety has been conclusively proven. The precautionary principle is advanced by our own Food and Drug Administration with respect to new and untested drugs. Why should untested transgenic crops with unknown health effects be regarded any differently by the U.S. Department of Agriculture?

Second, the Schmeiser case draws attention to the lack of labeling requirements for genetically engineered crops as a matter of consumer protection. To promote consumer choice or to put farmers on notice that they may be liable for patent infringement, shouldn't federal agencies require that genetically engineered crops be truthfully labeled?

A poll by the Food Policy Institute of Rutgers University found that 75 percent of Americans believe there are no genetically engineered ingredients in their food. Actually, about 80 percent of processed food contains some genetically engineered ingredients. The poll also showed 95 percent of those questioned wanted labeling of genetically engineered crops.

Third, the risk of liability close to home will only increase. In Oregon, the USDA has issued 328 permits for test plots of genetically engineered crops: herbicide-resistant vegetables and grasses, as well as crops with pharmaceutical and industrial compounds. If these crops move from small-scale test plots to widespread planting, as they have elsewhere, not only seed-saving farmers but homeowners with lawns may find themselves unwilling defendants in patent infringement lawsuits.

Monsanto's Roundup Ready creeping bentgrass currently is up for USDA approval for commercial planting in the Willamette Valley. Do existing testing safeguards adequately address the problem of out-crossing of genetically engineered creeping bentgrass pollen? Out-crossing can occur from bird migrations or from harvesters tracking genetically engineered seed off approved plots.

Anyone who has suffered from grass seed allergies knows that wind-borne grass pollen travels far. When that pollen out-crosses with nongenetically engineered grass, the logic of the Schmeiser case suggests homeowners with lawns containing out-crossed gene sequences may find themselves to be unintentional patent infringers. Furthermore, if foreign purchasers reject genetically engineered creeping bentgrass, what will become of Oregon's $200-million-a-year grass seed industry?

It's not too late - and it's certainly not too early - for Oregonians to start asking these questions. So why should you care about the Schmeiser case? Literally, you could be sued over the grass growing in your own front yard.

Keith Aoki is a professor at the University of Oregon School of Law who teaches courses on copyrights, trademarks, property and cyberlaw. Percy Schmeiser is giving a public lecture at 7 p.m. Friday at Agate Hall, at East 18th Avenue and Agate Street.