Monsanto vs. Schmeiser: Part One

MONSANTO vs. SCHMEISER

CASE STUDY: Part One

From Justice Andrew MacKay’s “Reasons for Judgment”:

[1] This is an action heard in Saskatoon, against the defendants, pursuant to the Patent Act…for alleged infringement of the plaintiffs’ Canadian Letters Patent No. 1,313,830. 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 plaintiff’s patent, and by selling the canola seed they harvested, all without the consent or license of the plaintiffs. The commercial product resulting from the plaintiffs’ development, from its patent and licensing agreements, is known as “Roundup Ready Canola”, a canola seed that is tolerant of glyphosate herbicides including the plaintiffs’ “Roundup”.

Background:
On February 23rd, 1993 Monsanto Canada Inc. was granted a seventeen year patent which covered genetically modified canola cells that allowed the plant to be resistant to the herbicide Roundup. The company sold the seed as Roundup Ready canola. In 1998 it was discovered by Monsanto that 95 to 98 percent of a farmer named Percy Schmeiser’s fields were planted with this type of seed, which it perceived to be a direct infringement of the patent.
Schmeiser claims he did not intentionally plant the Roundup Ready variety of canola but that natural pollination through the air or an accidental spillage onto his field by an area farmer’s truck must have been the cause. Monsanto urged that regardless of if the presence of seed with its patented gene was discovered accidentally, the seed is still property of the company and it deserves both the $15C/acre licensing fee as well as profits from the sale of Schmeiser’s 1998 crop. Schmeiser on the other hand insisted that he had the right to replant seeds that grew on his own property and that this should override Monsanto’s legal rights.
Since Monsanto’s patent covered only the genetically modified plant cells but not the genetically modified plants themselves, it was up to the Court to decide whether growing genetically modified plants constitutes “use” of the invention of a genetically modified plant cell. [1] Ultimately this case is an issue of intellectual property rights versus physical property rights, whether “patent rights take priority over the right of the owner of physical property to use his property” [2] and to what extent a patent can put limitations on the physical owner of the property as to what he or she may do to or with this property, including duplicating or producing it in any way without permission of the patent holder.

Activity:
Everyone will be divided into one of four different groups with each group representing a different interest group that is petitioning the Court concerning their interest in Monsanto vs. Schmeiser. For the purpose of this case study, you should consider yourself to be a member and advocate of the group to which you have been assigned and do your best to adequately and persuasively represent the interest of your group. This is a role playing exercise. Regardless of whether or not you actually agree with the position to which you have been assigned, you should do your best to accurately represent the stance of your group.

The four groups will be:
1. Percy Schmeiser (and Schmeiser Enterprises Ltd.)
2. Monsanto Canada Inc.
3. Canadian organic farmers
4. Mendel Biotechnology Inc.

Step One: Study the readings for the group to which you have been assigned. These are sources both from the individuals and companies involved as well as relevant news articles from the time of the actual Monsanto vs. Schmeiser case. You do not need to read the assigned readings for any group except that which you are a part of. After completing the readings, write down some of the main points that you feel are good arguments for your case. Don’t just write down facts; be sure to include reasoning and justification behind these claims.

Step Two: Get together with the others who have been assigned to the same group as you. Discuss the arguments you have gathered from the readings and work together to develop a short presentation (about 5 minutes) as if your interest group was petitioning the Canadian Supreme Court during the Monsanto vs. Schmeiser trial. Your group’s presentation should explicate your interest group’s position as well as provide arguments for why you believe that the Court should rule one way or another. In other words your group will ultimately need to express why the Court should either find Percy Schmeiser guilty of patent infringement or not.

Step Three: Each group will present their case. After each group has presented there will be a brief opportunity for groups to pose questions to one another or raise objections.

Step Four: After receiving questions and objections, your group will reconvene and discuss any alterations to their position that might be necessary to strengthen your position in light of the comments. Then you and your group will work together to write a one page brief summarizing your official petition to the Court. Each group only needs to turn in one brief.
Note: The outcome of the actual Monsanto vs. Schmeiser case may not come into play in your discussion and presentation. Even though some of the readings reference the Court’s decision, the activity should be done without the assumption that it was right. You should do this activity as if this was the actual case and no ruling had yet been made.