Intellectual Property & Agriculture

In the 1990s, researchers at the University of Saskatchewan developed a transgenic variety of flax known as CDC Triffid, which was genetically designed to be herbicide-resistant. The crop received regulatory approval in the mid-1990s, but was never adopted by Canadian farmers for commercial use, because of fears that its use would close export markets such as the European Union, which has a zero-tolerance for GMO foods.

Those fears have now materialized. The flax industry is scrambling to discover why CDC Triffid seeds appear to have propogated in Western Canadian flax fields, despite having been “decommissioned” fifteen years ago.  This story has all the makings of a science-fiction tale (indeed, the name of the crop comes from a sci-fi novel about carnivorous plants).  The intellectual property issues are also interesting, since the original research would have produced an invention subject to intellectual property rights - likely patentable in the same way that the transgenic crops developed by Monsanto and others have been patented (though there is no indication that CDC Triffid was ever the subject of a patent).

The most recent case where Monsanto enforced its patent rights over a farmer was in the 2009 case of Monsanto Canada Inc. v. Rivett, 2009 FC 317 (CanLII), where a farmer was hit with a damage award for his unauthorized use of Monsanto’s patented canola seeds.  In that case, the court reviewed the concept of the “innocent user” who finds a patented higher life form has “escaped” and started growing on his land. As noted in Infringement of Patent on Higher Life Form ”Life forms have a way of getting up and moving around: seeds propagate and blow away, creatures crawl, viruses replicate and invade.”  The Triffid case is a perfect illustration.

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