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Possible consequences of remedy in Monsanto Canada Inc. v. Schmeiser.

Article Excerpt
In 2004, the Supreme Court of Canada (S.C.C.) passed judgment on Monsanto Canada Inc. v. Schmeiser, (1) an infringement action brought about by the possession of genetically modified crops, and the result is one of the most significant cases in Canadian patent law. The judgment was based upon the facts determined at trial, where the judge found that Mr. Schmeiser, without permission or license from Monsanto Canada Inc., intentionally grew crops containing a herbicide resistant gene, the patent for which was owned by Monsanto. (2)

In a 5-4 decision that drew much criticism, the majority of the S.C.C. decided that the patenting of a gene, and indirectly, for the resulting plant, was valid, and that the cultivation of seeds containing the patented cell and gene by Mr. Schmeiser constituted an infringing use that violated the monopoly granted to Monsanto by s. 42 of the Patent Act. (3) It is in this finding of validity and infringing use that much of the controversy lies. Most critics, including the minority of the S.C.C. in this case, point out that by patenting a gene, it is, in effect, granting the patent rights to the subsequent higher life form, something which was deemed unpatentable by a previous S.C.C. case, Harvard College v. Canada (Commissioner of Patents). (4) However, this paper focuses on another aspect of the decision, that of the determined remedy to the infringement....

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