A company’s legitimate right to enjoy the fruits of its invention has been upheld by the Supreme Court of Canada’s decision in the case of Monsanto versus Percy Schmeiser.
The court found that the Saskatchewan farmer purposely grew canola seed that he knew contained Monsanto’s Roundup Ready gene without paying the company’s technical use fee. In so doing, he violated the company’s patent on the gene.
There is reason to applaud the ruling, because it will encourage biotechnological research, a field with the potential to do much public good.
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But the case’s conclusion does not settle all the issues surrounding patents on genetically modified organisms.
It dealt with the rights of the patent holder, but with every right go responsibilities and obligations.
In the case of genetically modified canola, the responsibilities might prove onerous. The court found that the patent holder has ownership of the GM gene no matter where pollen drift or seed may deposit it.
Canola’s reproductive nature makes it impossible to control the spread of its gene in the environment.
So a farmer who finds unwanted volunteer GM canola on his land could claim that the GM genes are trespassing and demand that the owner remove them.
Monsanto already has a program that removes its GM canola in such cases. However, its responsibilities may go much further.
The Saskatchewan Organic Directorate argues that because of seed contamination, pollen drift and other methods of transmission, it has become almost impossible to grow GM-free canola, causing the loss of a multimillion dollar market associated with organic buyers and export markets that desire GM-free product.
This September, arguments will be made about whether this case can be certified as a class action suit open to most certified organic farmers.
We hope that in fairness, just as the courts have protected Monsanto’s intellectual property, they will also protect farmers from the intrusion of unwanted genetic
pollution.
But there are other related matters that are the responsibility of Parliament to settle, not the court.
In 2002, in a case concerning Harvard University’s desire to patent a mouse genetically altered to make it more susceptible to cancer, the Supreme Court ruled that higher life forms such as plants and animals can’t be patented in Canada.
It found that a life form that replicates itself and is the product of millions of genes cannot be considered a patentable invention simply because one gene had been altered.
It ruled that if Parliament wants to allow patents on higher life forms, it should amend the Patent Act to specifically say so.
Parliament’s inaction on this sage advice is causing continuing uncertainty.
For example, because of the prohibition on patenting plants, Monsanto’s patent is limited to the herbicide resistant gene and cell. But the majority Supreme Court found that by cultivating the plant, Schmeiser was using the gene and therefore infringing on Monsanto’s patent.
In other words, the plant, a higher life form, was given indirect patent protection because it was derived from a genetic modification.
But the minority dissenting decision written by justice Louise Arbour found that patent protection of the gene could not be extended to the plant and particularly not to the plant’s offspring.
Granting protection to the organism’s progeny “represents a greater transfer of economic interests from the agricultural community to the biotechnology industry than exists in other fields of science,” Arbour wrote.
To provide more certainty and fairness, Parliament must make clear its views about patenting higher life forms.
This will require changes to the Patent Act. When the act was created 136 years ago, legislators could not have dreamed of the power of today’s science.
The goal will be to encourage and reward innovation in the biotechnology sector without penalizing farmers.
The solution to such a complicated matter might be to maintain limits on patents, but provide more tailored intellectual property protection in companion legislation.
The issues are controversial and will require much public consultation.
But when the newly elected Parliament gathers later this year, it should not shy away from the task.
