Monsanto Canada Inc v Schmeiser 1 S.C.R. 902, 2004 SCC 34 is a leading Supreme Court of Canada case on patent rights for biotechnology, addressing a dispute between a Canadian canola farmer, Percy Schmeiser, and the agricultural biotechnology company Monsanto. The court heard the question of whether Schmeiser's intentionally growing genetically modified plants constituted "use" of Monsanto's patented genetically modified plant cells. By a 5–4 majority, the court ruled that it did. The Supreme Court also ruled 9–0 that Schmeiser did not have to pay Monsanto their technology use fee, damages or costs, as Schmeiser did not receive any benefit from the technology.Canadian Supreme Court Decision The case drew worldwide attention and is widely misunderstood to concern what happens when farmers' fields are accidentally contaminated with patented seed. However, by the time the case went to trial, all claims of accidental contamination had been dropped; the court only considered the GM canola in Schmeiser's fields, which Schmeiser had intentionally concentrated and planted. Schmeiser did not put forward any defence of accidental contamination.
Background The biotechnology company Monsanto developed and patented a glyphosate-resistant gene for the canola plant which has the effect of producing canola that is resistant to glyphosate. Monsanto marketed the seed as Roundup Ready Canola. Farmers using the system are able to control weed competition using Roundup, while avoiding damage to the Roundup-resistant crops. Users are required to enter into a formal agreement with Monsanto, which specifies that new seed must be purchased every year, the purchase price of which includes a licensing fee to use the patent rights. Roundup Ready Canola was introduced in Canada in 1996, and by 1998, it accounted for 25% of the country's canola area.Achievements in Plant Biotechnology - Evaluation: Canola. Monsanto Company; 2001. Retrieved April 4, 2006.
Origin of the patented seed in Schmeiser's fields As established in the original Federal Court trial decision, Percy Schmeiser, a canola breeder and grower in Bruno, Saskatchewan, first discovered Roundup-resistant canola in his crops in 1997.Federal court of Canada. Monsanto Canada Inc. v. Schmeiser Date: 20010329 Docket: T-1593-98 Retrieved March 26, 2006. He had used Roundup herbicide to clear weeds around power poles and in ditches adjacent to a public road running beside one of his fields, and noticed that some of the canola which had been sprayed had survived. Schmeiser then performed a test by applying Roundup to an additional of the same field. He found that 60% of the canola plants survived. At harvest time, Schmeiser instructed a farmhand to harvest the test field. That seed was stored separately from the rest of the harvest and used the next year to seed approximately of canola.
At the time, Roundup Ready canola was in use by several farmers in the area. Schmeiser claimed that he did not plant the initial Roundup Ready canola in 1997, and that his field of custom-bred canola had been accidentally contaminated. While the origin of the plants on Schmeiser's farm in 1997 remains unclear, the trial judge found that with respect to the 1998 crop, "none of the suggested sources [proposed by Schmeiser] could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality" ultimately present in Schmeiser's 1998 crop.Albainy-Jenei, Stephen R. "Muckraking Columnist Takes on Biotech Industry" . December 16, 2005. Retrieved March 25, 2006.
Dispute In 1998, Monsanto learned that Schmeiser was growing a Roundup-resistant crop and approached him to sign a license agreement to their patents and to pay a license fee. Schmeiser refused, maintaining that the 1997 contamination was accidental and that he owned the seed he harvested, and he could use the harvested seed as he wished because it was his physical property. Monsanto then sued Schmeiser for patent infringement, filing its case in Canadian federal court on August 6, 1998. Negotiations to settle the matter collapsed on August 10, 1999, leading Schmeiser to file a countersuit against Monsanto for $10 million for libel, trespass, and contaminating his fields.Adrian Ewins for the Western Producer. August 19, 1999 Legal battle over patented canola set for next JuneNote: As of 2007, Schmeiser had not started to prosecute the countersuit., as per Peter W. B. Phillips. Farmers' Privilege and Patented Seeds. Chapter 3 in Accessing and Sharing the Benefits of the Genomics Revolution eds. Peter W. B. Phillips, Chika B. Onwuekwe. Springer, 2007, p58
Patent rights versus property rights Regarding the question of patent rights and the farmer's right to use seed taken from his fields, Monsanto said that because they hold a patent on the gene, and on canola cells containing the gene, they have a legal right to control its use, including the intentional replanting of seed collected from plants with the gene which grew accidentally. Schmeiser insisted on his "farmer's rights" to do anything he wished with seeds harvested from any plants grown on his field - including plants from seeds that were accidentally sown - and that this tangible property right overrides Monsanto's patent rights.
Canadian law does not mention any such "farmer's rights"; the court held that the farmer's right to save and replant seeds is simply the right of a property owner to use his or her property as he or she wishes, and hence the right to use the seeds is subject to the same legal restrictions on use rights that apply in any case of ownership of property, including restrictions arising from patents in particular. The court wrote: "Thus a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbour's land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell."
Publicity Beginning with the lead-up to the initial Federal Court trial, the case drew widespread public attention and media coverage. The contest was portrayed by some as a classic David-and-Goliath confrontation between a small farmer and Monsanto, while others portrayed it as theft of the results of years of research and development. Environmental groups and anti-genetic engineering activists championed Schmeiser's cause and he spoke on the case around the world. Others depicted the case as a contest between a large biotechnology company and an equally large and well funded anti-biotechnology industryWager, R. Saskatoon Star Phoenix. April 15, 2005. "Convicted farmer makes unlikely hero for rural lifestyle" and raised concerns that the facts and context of the case was being misrepresented by Schmeiser, environmental groups and anti-genetic engineering activists.Hursh, K. January 21, 2004. The Leader-Post "Don't Pity Poor PercySchwarts, J. 09/11/2002 Montreal Gazette "When excuses won’t fly: No seed of doubt in canola trial. Farmer claim’s he’s victim of corporate cruelty but explanations don’t stand up to scrutiny"
Monsanto v. Schmeiser was portrayed as being part of the process of legally defining the bounds of new biotechnologies, including genetic engineering and ownership of higher lifeforms. The case was frequently connected with that of the so-called Harvard mouse, where in 2002 the Canadian Supreme Court had rejected a patent for a special breed of mouse developed for research by Harvard University. The Canadian Harvard mouse case was a precedent-setting case in Canada with regard to the right to own higher lifeforms, where the Canadian ruling went against findings in the US and Europe, where the Harvard mouse patent was upheld. The Canadian Supreme Court eventually took pains to point out that the Monsanto v Schmeiser case focused on genes in seeds, and not on higher life forms; it was "the first in which the top court of any country has ruled on patent issues involving plants and seed genes".
Initial trial and appeal The issues of patent infringement and "farmer's rights" were settled, in Monsanto's favour, at the trial before the Federal Court of Canada and upheld at the appeal level before the Federal Court of Appeal. Both courts found that a key element in Mr. Schmeiser's patent infringement in his 1998 crop was that he knew or ought to have known the nature of the glyphosate-resistant seed he saved and planted.
The case was initially tried on June 5, 2000, in the Federal Court of Canada, at Saskatoon, Saskatchewan.By Fred Bridgland for Environmental Newswire. June 19, 2000 Farmer v. Monsanto: GM Seed Fight in Canadian Court
All claims relating to Roundup Ready canola in Schmeiser's 1997 canola crop were dropped prior to trial and the court only considered the canola in Schmeiser's 1998 fields. Regarding his 1998 crop, Schmeiser did not put forward any defence of accidental contamination. The evidence showed that the level of Roundup Ready canola in Mr. Schmeiser's 1998 fields was 95–98%. Evidence was presented indicating that such a level of purity could not occur by accidental means. On the basis of this the court found that Schmeiser had either known "or ought to have known" that he had planted Roundup Ready canola in 1998. Given this, the question of whether the canola in his fields in 1997 arrived there accidentally was ruled to be irrelevant. Nonetheless, at trial, Monsanto was able to present evidence sufficient to persuade the Court that Roundup Ready canola had probably not appeared in Schmeiser's 1997 field by such accidental means (paragraph 118). The court said it was persuaded "on the balance of probabilities" (the standard of proof in civil cases, meaning "more probable than not" i.e. strictly greater than 50% probability) that the Roundup Ready canola in Mr. Schmeiser's 1997 field had not arrived there by any of the accidental means, such as spillage from a truck or pollen travelling on the wind, that Mr. Schmeiser had proposed.
In the public arena, Schmeiser supporters argued that his account still leaves open the possibility that the harvesting and replanting of Roundup Ready canola from the sprayed region was accidental and resulted from a miscommunication between Schmeiser and his farmhand, or from a failure of Schmeiser to have the presence of mind to instruct his farmhand to avoid taking canola seed for replanting from the sprayed region. Supporters of Monsanto argued that an oversight of this nature is not plausible, especially in light of Schmeiser's claims regarding the extent to which he considered Roundup Ready canola undesirable in his fields and the importance he claims to have placed on the continued survival of his own strain of canola, and in light of his having been notified prior to planting his 1998 crop that Monsanto believed he had grown Roundup Ready canola in 1997. Legally, an oversight of this nature is not a defence against patent infringement, and was therefore irrelevant. Patents are civil law, and the presence or absence of "guilty intent" is not a factor in determining patent infringement. On this point, the Federal Court of Appeal noted that accidental genetic contamination of a crop beyond a farmer's control should be an exception to the rule that intent is not an issue in patent disputes.
The Court's ruling concluded: