Schmeiser v. Monsanto: A Case Comment
![handle is hein.journals/alblr42 and id is 559 raw text is: SCHMEISER V MONSANTO
SCHMEISER V. MONSANTO: A CASE COMMENT
EDWARD (TED) YOO AND ROBERT BOTHWELL*
I. INTRODUCTION
The Supreme Court of Canada first wrestled with the patentability of higher life forms in
the Harvard mouse case.' Their decision to refuse patents claiming genetically modified
animals, and by extension plants, was a major disappointment to many in the biotechnology
industry in Canada. Canada stood alone amongst its G8 partners as the one jurisdiction where
such patents could not be obtained. Dire predictions about the future of biotechnology
research and development in Canada were made.
When the Supreme Court granted leave to appeal2 to Mr. Schmeiser in his legal battle with
industry giant Monsanto, it was thought by many that the rights of patentees could take
another blow, and further set back Canada's growing biotech industry. Others more
optimistically believed that the Supreme Court had an opportunity to expand patent rights in
the biotech field.
II. FACTS
The respondents, Monsanto Company and Monsanto Canada Inc., are the owner and
licensee respectively of a patent titled Glyphosate-Resistant Plants. The patent was granted
in 1993 and is directed to a chimeric3 gene that confers upon canola plants resistance to
glyphosate-based herbicides. The resulting plant is named Roundup Ready Canola by
Monsanto, referring to the resistance demonstrated by the modified canola plant towards
Monsanto's own glyphosate-based herbicide Roundup.
Monsanto licenses its Roundup Ready Canola to farmers for a fee, provided they sign a
Technology Use Agreement (TUA), which entitles the farmer to purchase Roundup Ready
Canola from an authorized Monsanto agent. The TUA restricts the farmer from using the
seed to plant more than one crop and requires the crop to be sold only for consumption to a
commercial purchaser authorized by Monsanto. The farmer is also prohibited from selling
or giving the seed to a third party. Additionally, the terms ofthe TUA provide Monsanto with
the right to inspect the fields of contracting farmers in order to verify compliance.
Ted Yoo is a registered patent agent and partner with Bennett Jones LLP in their Edmonton office.
Robert Bothwell is a student-at-law with Bennett Jones LLP. The helpful comments of Simon Foxcrofi
are gratefully acknowledged.
Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45 [Harvard College].
Harvard College applied for a patent for a genetically modified mouse comprising a human oncogene,
a so-called oncomouse. The Supreme Court had an earlier opportunity to deal with the issue in Pioneer
Hi-Bred Ltd. v. Canada (Commissioner of Patents), [1989] 1 S.C.R. 1623, but decided the appeal on
another ground.
2 Monsanto Canada v. Schmeiser, [2002] S.C.C.A. No. 437.
A chimeric gene is a gene that does not exist in nature and that is constructed from genes from different
species.](ViewImageLocal?handle=hein.journals/alblr42&div=24&collection=journals&method=preview&ext=.png&size=3)
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Schmeiser v. Monsanto: A Case Comment
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