Supreme Court decides in favour of Monsanto in seed patent case

Ottawa, ON – May 21, 2004 – The biotechnology industry today is applauding a Supreme Court of Canada decision in the Monsanto vs Percy Schmeiser case supporting intellectual property protection in Canada.

The seed which is the subject of Monsanto’s complaint can be traced to a 370-acre field on Mr Schmeiser’s farm, called field number 1, on which Mr Schmeiser grew canola in 1996. In 1996 five other canola growers in Mr Schmeiser’s area planted Monsanto’s Roundup Ready canola, which is resistant to the herbicide glyphosate, called Roundup. The following spring, Mr Schmeiser planted the seeds saved on field number 1. The crop grew. He sprayed a three-acre patch near the road with Roundup and found that approximately 60% of the plants survived. According to the court, this indicates that the plants contained Monsanto’s patented gene and cell.

In the fall of 1997, Mr Schmeiser harvested the Roundup Ready canola from the three-acre patch he had sprayed with Roundup. He did not sell it. He instead kept it separate, and stored it over the winter in the back of a pick-up truck covered with a tarp.

A Monsanto investigator took samples of canola from the public road allowances bordering on two of Mr Schmeiser’s fields in 1997, all of which were confirmed to contain Roundup Ready canola. In March 1998, Monsanto visited Mr Schmeiser and put him on notice of its belief that he had grown Roundup Ready canola without a licence. Mr Schmeiser nevertheless took the harvest he had saved in the pick-up truck to a seed treatment plant and had it treated for use as seed. Once treated, it could be put to no other use. Mr Schmeiser planted the treated seed in nine fields, covering approximately 1,000 acres in all.

Numerous samples were taken, some under court order and some not, from the canola plants grown from this seed. Moreover, the seed treatment plant, unbeknownst to Mr Schmeiser, kept some of the seed he had brought there for treatment in the spring of 1998, and turned it over to Monsanto. A series of independent tests by different experts confirmed that the canola Mr Schmeiser planted and grew in 1998 was 95 to 98% Roundup resistant.

Monsanto says it originally pursued this case in the Federal Court of Canada because Mr Schmeiser infringed Monsanto’s patents on Roundup Ready technology by planting 1,030 acres of Roundup Ready canola without paying the required license fee for using the technology.

The case made its way up to the Supreme Court, and today, the court ruled that the subject matter claimed within Monsanto’s patent for Roundup Ready canola falls within the Patent Act and that Mr Schmeiser and Schmeiser Enterprises of Bruno, SK infringed that patent.

As a result of the court decision, Mr Schmeiser is prohibited from planting, growing, cultivating, harvesting, selling, marketing or distributing the patented technology in the future and must deliver to Monsanto any seed in his possession known to contain the Roundup Ready gene. As Mr Schmeiser did not make use of the benefits provided by Monsanto’s technology by spraying his crop with Roundup, he was not required to make a financial settlement to Monsanto, and both sides are responsible for absorbing their own legal costs.

Both Monsanto and the biotech industry in Canada have applauded the decision.

“We are gratified the Supreme Court of Canada found that Monsanto’s patent pertaining to the Roundup Ready gene is valid and enforceable,” says Carl Casale, executive vice-president, Monsanto Company. “The Supreme Court has set a world standard in intellectual property protection and this ruling maintains Canada as an attractive investment opportunity. Patent protection encourages innovations that will lead to the next generation of value-added products for Canadian farmers.”

“We have a strong, vibrant biotech industry in Canada that is growing every day. We congratulate the court for confirming the vital role scientific discovery and innovation play in Canada,” said Janet Lambert, BIOTECanada president. BIOTECanada was an intervener in the case, and appeared before the Supreme in January to convey the importance of patent protection to Canada’s biotechnology industry as a way of protecting the ideas and science that is done here.