Supreme Court Rules on Schmeiser v. Monsanto

Published in CBA's National Intellectual Property Section Newsletter, June 2004.

The Supreme Court of Canada has ended the closely watched battle between Percy Schmeiser and Monsanto, with the release of its judgment on May 21. In another split decision over the patentability of higher life forms, the Court ruled 5 to 4 that Monsanto’s patent is valid and that claims to modified genes and cells can give rise to enforcement rights over activities involving whole plants. Schmeiser was successful on the question of remedy.

The battle began in 1998 when Monsanto sued Schmeiser, a Saskatchewan farmer, for patent infringement. Monsanto’s patent claims genetically engineered genes, and cells containing those genes, that render canola plants resistant to a specific herbicide. The patent does not claim canola plants or seeds. Monsanto alleged that Schmeiser infringed its patent rights by reproducing canola seeds and plants containing genes and cells covered by Monsanto’s patent, and by