Split decision on gene case – The Law

On May 21, Canada’s Supreme Court in a 5-4 decision found that Bruno, Sask., farmer Percy Schmeiser had breached Monsanto’s patent by using the company’s Roundup Ready canola without having signed the appropriate agreement or paid the required fee.

This decision affirmed two important points.

  • A patent can be held for a gene that makes up part of a plant, even though the plant itself is not capable of patent. The question of patenting life forms was important because of a 2002 Supreme Court decision that held that a mouse, genetically modified to be more susceptible to cancer and therefore a valuable research tool, was not patentable because higher life forms could not be patented.
  • The court confirmed that when one cultivates a plant that contains a patented gene, one is using the developer’s patent even though the plant itself is not patentable. New varieties of plants can also be protected under the Plant Breeder’s Rights Act, which grants the developer of new varieties an 18 year monopoly on the variety. Protection under that act is not as wide as under the Patent Act.

However, this decision did not resolve all legal questions relating to the use of genetically modified crops.

A breach of patent does not occur every time volunteer Roundup Ready canola, or other crop that has a patented gene, grows on your land. Unlike many other products, plants spread by cross-pollination, wind and by birds and through activities like harvesting and trucking.

The court noted “we emphasize … that we are not concerned here with the innocent discovery by farmers of ‘blow-by’ patented plants on their land or in their cultivated fields.” In support of this proposition the court stated: “However, (Schmeiser) did not at all explain why he sprayed Roundup to isolate the Roundup Ready plants he found on his land; why he then harvested the plants and segregated the seeds, saved them and kept them for seed; why he next planted them; and why through this husbandry, he ended up with 1,030 acres of Roundup Ready canola … On the facts found by the trial judge, Mr. Schmeiser was not an innocent bystander; rather, he actively cultivated Roundup Ready canola.”

Based on this ruling, are there situations where a farmer can grow the protected plant and not be in breach of the patent law?

The majority judges said on that question that farmers “might perhaps prove that the continued presence of the patented gene on their land was accidental and unwelcome, for example by showing that they acted quickly to arrange for its removal….”

Take for example that volunteer patented plants get mixed in with the regular canola crop in A’s crop. A harvests it and saves it for seed several years in a row. He trades seeds with a neighbour. It seems to me this would be an innocent usage, especially if the farmers didn’t take advantage of the feature protected by patent – in the case of Roundup canola, its resistance to that herbicide.

Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.


Stories from our other publications