High Plains Drifting: Wind-Blown Seeds and the Intellectual Property Implications of the GMO Revolution
![handle is hein.journals/nwteintp4 and id is 5 raw text is: Copyright 2006 by Northwestern University School of Law Volume 4, Number I (Fall 2005)
Northwestern Journal of Technology and Intellectual Property
High Plains Drifting:
Wind-Blown Seeds and the Intellectual Property
Implications of the GMO Revolution
Stephanie M. Bernhardt*
I. INTRODUCTION
If a man puts [corn] into my bag, in which before there is some corn, the whole is
mine, because it is impossible to distinguish what was mine from what is his.' The
Supreme Court of Canada recently rejected this principle in its decision in Monsanto v.
Schmeiser.2 Canada now imposes strict liability for infringement involving unlicensed
use of genetically modified (GM) seed, even in situations in which natural forces
transfer the intellectual property into an innocent person's crops.3 This article discusses
the Schmeiser case and presents a comparative analysis of Canadian and American patent
infringement provisions. It further discusses possible alternatives to holding farmers who
unintentionally possess a patented gene strictly liable for infringement.
II. BACKGROUND OF THE PERCY SCHMEISER CASE
Monsanto owns a patent on Roundup Ready® canola seed.4 Roundup Ready®
seed is a genetically modified organism (GMO), which is resistant to Roundup®
herbicide (glyphosate). Farmers who purchase these seeds from Monsanto can spray a
whole field without worrying about harming the crops, keeping weed control costs low.5
Unfortunately, the only way to distinguish between a canola plant grown from Roundup
Ready® seed and a mundane plant is through a chemical test or microscopic inspection.6
Therefore, it is difficult for patented seed owners to monitor use and unauthorized users
may have no idea they are in possession of a patented seed.
Percy Schmeiser is a resident of Saskatchewan, Canada who has been farming for
over 55 years.7 Schmeiser discovered Roundup Ready® plants in his fields after some of
* I would like to give a special thanks to my future husband Justin A. Kwong for without his inspiration,
encouragement and agricultural knowledge this note would not have been possible.
Colwill v. Reeves, 2 Camp. 575, 576 (1811). See also 15A C.J.S. Confusion of Goods § 6 (2005); 1
Am. Jur. 2d Accession and Confusion § 1 (2004).
2 Monsanto Can. Inc. v. Schmeiser, [2004] S.C.R. 910.
See Id. at 910-11; Keith Aoki, Recent Skirmishes in the Seed Wars, 11 CARDOZO J. INTL. & COMp. L.
247, 292-93 (2003).
4 U.S. Patent No. 5,352,605 (issued Oct. 28, 1993); Can. Patent No. 1,313,830 (issued Aug. 6, 1986).
5 Schmeiser, [2004] S.C.R. at 915-16.
6 Id. at 914.
7 Profile of Percy and Louise Schmeiser, http://www.percyschmeiser.com/profile.htm (last visited Nov.](ViewImageLocal?handle=hein.journals/nwteintp4&div=5&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
High Plains Drifting: Wind-Blown Seeds and the Intellectual Property Implications of the GMO Revolution
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most