Infringement of Patent on Higher Life Form

The decision earlier this year in Monsanto Canada Inc. v. Wouters 2007 FC 625 (Barnes, J.) marks the first damage award in a case pitting Monsanto against a farmer in Canada. In the 2004 landmark case of Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, [2004] 1 S.C.R. 902, Monsanto sued a Saskatchewan farmer for unauthorized use of Monsanto’s patented Roundup Ready Canola, a canola variety containing genetically modified genes and cells. The court decided that Schmeiser had infringed Monsanto’s patent by growing the plants on his farm, but Schmeiser “did not gain any agricultural advantage from the herbicide resistant nature of the canola since no finding was made that they sprayed with Roundup herbicide to reduce weeds.” In short, the farmer earned no profit from the patented invention and Monsanto was not entitled to any compensation for the infringement.

In the Wouters case, the Ontario farmer may have been able to raise the Schmeiser defence (or any number of other defences). Problem is, Wouters never filed a proper defence, leaving the court with little choice but to declare Monsanto the winner by default. The court concluded that Wouters infringed the patent by growing, harvesting and selling 392 acres of soybeans which Wouters knew contained the patented genes and cells. The resulting damage award of over $100,000 appears to mark the first award for infringement of a patent covering a so-called “higher life form” in Canada.

Yes, the Supreme Court of Canada in the famous Harvard Mouse Case decided clearly that “higher life forms” are not patentable in Canada. However, the same court in Schmeiser had to admit that the individual cells are patentable, and the patented genes and cells are not merely a part of the plant; rather, the patented cells compose its entire physical structure. So the court may not want to permit the patenting of higher life forms, but the higher life forms are inseparable from the patented cells of which they are comprised. You can’t destroy all the cells and leave the plant alive.

Life forms have a way of getting up and moving around: seeds propagate and blow away, creatures crawl, viruses replicate and invade.  Where will the Monsanto cases go when they grow legs and start crawling around the patent landscape? 

 
Calgary - 09:35 MST

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