Rounding Up Plant Patents & Other Growing Patent Concerns a Comment on Monsanto v. Schmeiser

Abstract

On the heels of their ubiquitous and controversial decision in Harvard College v. Canada (Commissioner of Patents) (the so-called ‘Harvard Mouse’ case), the Canadian Courts were soon asked to re-consider the issues surrounding the patentability of biotechnological inventions in Monsanto v. Schmeiser. Unlike Harvard Mouse, this matter was an infringement action. At the Trial Division, the crux of the action lay with Schmeiser's alleged failure to obtain a license Monsanto's patented "Roundup Ready Canola" (a canola seed tolerant of glyphosate herbicides including Monsanto's own "Roundup"). "The infringement alleged is by the defendants using, reproducing and creating genes, cells and canola seeds and plants containing genes and cells claimed in the plaintiffs' patent, and by selling the canola seed they harvested, all without the consent or licence of the plaintiffs."