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May 21, 2004, Ottawa – Supreme Court of Canada hands over a 5:4 decision in favour of Monsanto in the much anticipated Canola plant patent case.
The Majority held that claims to genes and cells, per se, give patent protection when plants carrying those altered genes/cells are used. Specifically, the Court held that "infringement through use is thus possible even where the patented invention is part of, or composes, a broader unpatented structure or process". (In Canada, claims to plants per se are not patentable). Saskatchewan farmer Percy Schmeiser selected for those plants that carried the patented genes/cells and therefore, infringed Monsanto's Canola patent. The Court also stated that if Schmeiser had "been a mere 'innocent bystander’, he could have refuted the presumption of use arising from his possession of the patented gene and cell." However, the Court held that Schmeiser made no profits as a result of the invention and that he would have had the same profits if the Canola that he sold were ordinary Canola. As such, no damages were awarded.
The full decision can be found on the Supreme Court of Canada Website: http://www.lexum.umontreal.ca
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