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May 21, 2004

CANADIAN SUPREME COURT UPHOLDS MONSANTO INFRINGEMENT ACTION ON GENETICALLY MODIFIED CANOLA SEED

The Canadian Supreme Court awarded Monsanto a resounding victory May 21, 2004 in a ruling upholding Monsanto's Canadian patent on genes for genetically altered canola seed.

The gene at the centre of the litigation was introduced into canola to produce a canola plant, known as Roundup Ready, that is resistant to the common Monsanto produced weed-control herbicide known as Roundup. The altered canola plant's progeny or offspring are also resistant to Roundup.

The Canadian patent infringement action began in 1997, when Monsanto discovered genetically engineered canola plants growing on Percy Schmeiser's farm. Mr. Schmeiser contended that since a plant is a higher life form and cannot be patented, he had done nothing wrong.   Monsanto did not patent the genetically modified plant itself, but rather  the genes and the modified cells it contained.

According to the Canadian Supreme Court's decision (found here):

"The appellants actively cultivated Roundup Ready Canola as part of their business operations," a majority led by Chief Justice Beverley McLachlin and Mr. Justice Morris Fish concluded. "In light of all of the relevant considerations, the appellants used the patented genes and cells, and infringement is established.

"By cultivating a plant containing the patented gene and composed of the patented cells without licence, the appellants deprived the respondents of the full enjoyment of the monopoly," they said, writing on behalf of Mr. Justice Ian Binnie, Mr. Justice Jack Major and Madam Justice Marie Deschamps. "The appellants' involvement with the disputed canola was also clearly commercial in nature."

Mr. Schmeiser saved the seed and reused it "for production and advantage," the majority noted. "Whether or not patent protection for the gene and the cell extends to activities involving the plant is not relevant to the patent's validity." 

Posted by Douglas Sorocco at 07:44 PM.
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