Monsanto Canada Inc v Schmeiser [2004] 1 S.C.R. 902, 2004 SCC 34[1] 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.[2] 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.[3]
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.[4]
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.[5] 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.
Arguments
Schmeiser's principal defence at trial was that as he had not applied Roundup herbicide to his canola he had not used the invention. This argument was rejected; the court said that the patent granted for the invention did not specify the use of Roundup as part of the invention, and thus there was no basis for introducing the requirement that Roundup had to be used in order for the invention to be used. That is, a patent prohibits unauthorized use of an invention in any manner, not merely unauthorized use for its intended purpose.
The Court considered the question of whether knowingly (or, where one ought to have known) planting and cultivating genetically modified canola constitutes "use" of Monsanto's patented invention of genetically modified canola cells, even if the crop is not treated with Roundup and the presence of the gene affords no advantage to the farmer. The court ruled in favour of Monsanto, holding that his use of the patented genes and cells was analogous to the use of a machine containing a patented part: "It is no defence to say that the thing actually used was not patented, but only one of its components." (Supreme Court Decision, Paragraph 78[19]) The court also held that by planting genetically modified Roundup resistant canola, Schmeiser made use of the "stand-by" or insurance utility of the invention. That is, he left himself the option of using Roundup on the crop should the need arise. This was considered to be analogous to the installation of patented pumps on a ship: even if the pumps are never actually switched on, they are still used by being available for pumping if the need arises.
Judgment
On May 21, 2004, the Supreme Court ruled 5–4 in favor of Monsanto. Schmeiser won a partial victory, where the court held that he did not have to pay Monsanto his profits from his 1998 crop, since the presence of the gene in his crops had not afforded him any advantage and he had made no profits on the crop that were attributable to the invention. The amount of profits at stake was relatively small, C$19,832; however, by not having to pay damages, Schmeiser was also saved from having to pay Monsanto's legal bills, which amounted to several hundred thousand dollars and exceeded his own.
Reasons of the Court
The majority was written by McLachlin C.J. with Major, Binnie, Deschamps and Fish JJ. concurring.
The Court dismissed the argument that "use" of patented cells or genes applied only in the context of their isolated form. Nor does the fact that Schmeiser did not use Roundup herbicide on his crops preclude "use" of the gene. Even though the plants propagate without human intervention the realities of modern agriculture mean there is always human intervention in the growth of plants and thus farming is a method of "use" of plant genes.
The Court ruled that Schmeiser deprived Monsanto of its monopoly on the special canola plant by storing and planting the Roundup Ready canola seeds pursuant to his commercial interests. Thus, Schmeiser is considered to have infringed section 42 of the Patent Act. The Court, however, disagreed with the damages given by the trial judge as there was no profit directly resulting from the invention itself.
In the ruling, the court made it clear that patent infringement was the sole consideration, and concerns related to genetic engineering in agriculture were not within the scope of the case:
Consequences
The courts at all three levels noted that the case of accidental contamination beyond the farmer's control was not under consideration but rather that Mr. Schmeiser's action of having identified, isolated and saved the Roundup-resistant seed placed the case in a different category. The appellate court also discussed a possible intermediate scenario, in which a farmer is aware of contamination of his crop by genetically modified seed, but tolerates its presence and takes no action to increase its abundance in his crop. The court held that whether such a case would constitute patent infringement remains an open question but that it was a question that did not need to be decided in the Schmeiser case (Paragraph 57 of the Appeals Court Decision).[18]
The ruling did increase the protection available to biotechnology companies in Canada, a situation which had been left open with the Harvard mouse decision, where it was determined that a "higher lifeform", such as an animal, or by extension a plant, cannot be patented. This put Canada at odds with the other G8 countries where the patent had been granted. In Monsanto vs. Schmeiser, it was determined that protection of a patented gene or cell extends to its presence in a whole plant, even while the plant itself, as a higher lifeform, cannot be patented. This majority view, based on the precedent of mechanical devices, was central to the Supreme Court's decision, and put the onus on the Canadian Parliament to make distinctions between machines and lifeforms as it saw fit.
In 2005, a "documentary theatre" production dramatizing the court battle, entitled Seeds, by Annabel Soutar, was staged in Montreal, Quebec. The dialogue was derived entirely verbatim from various archival sources.
The case is widely cited or referenced by the anti-GM community in the context of a fear of a company claiming ownership of a farmer's crop based on the inadvertent presence of GM pollen grain or seed.
See also
- List of Supreme Court of Canada cases (McLachlin Court)
- Monsanto Co. v. Geertson Seed Farms
- Bowman v. Monsanto Co.
- List of Supreme Court of Canada cases
- The Future of Food
External links
References
- Monsanto Canada Inc. v. Schmeiser - SCC Cases decisions.scc-csc.ca, retrieved 2025-10-20^
- Canadian Supreme Court Decision^
- A McHughen, R Wager. Popular misconceptions: agricultural biotechnology New Biotechnol, 2010^