LEGAL MEMORANDUM OF TASK ONE
1. Fact:Percy Schmeiser grows canola on his fields in Canada. And unlike his neighbors, he does not plant so-called Roundup ready canola which has been inserted “man-made genetically engineered genes” produced and patent-owned by Monsanto and which more resistant to the glyphosate herbicides. After an anonymous tip, Monsanto collected some canola plants from Percy Schmeiser’s fields in 2007 and found that the plants have patented gene in them.
2. Issue: Whether Percy infringe the Monsanto’s patent?
3. Brief answer: Yes. Although it is unclear whether Percy Schmeiser intentionally to get the modified genes, it is the fact that he use, reproduce the canola seed and plants containing genes without the consent or license of the plaintiff.
4. Rule: Article 27;28 ;30 TRIPS; Canadian patent act
5. Analysis:
5.1 Whether Monsanto has a patent on the “genes”?
l In this case Schmeiser argued that plants do not constitute patentable subject matter in Canada, even though Monsanto’s patent was only directed to the modified gene and the cells containing the gene[1] on the ground that in the Harvard College v. Canada case[2] the Commissioner of Patent reject their patent application for genetically altered mice that possess an oncogene, termed oncomice.
l However, under the Canadian patent act[3], which is consistent with the art.27 TRIPS, if a patent discloses an item that fulfills the requirements of new, inventive step and are capable of industrial application. Unlike in the Harvard case which is relate ethical and environmental concerns, Monsanto’s modified gene can be considered as patentable subject matter. And it is a new gene produced by a biotech giant company through research and can be used in agriculture to help the plant resistant to the to glyphosate herbicides, the man-made engineer gene deserved a patent.
5.2 whether there is a infringement?
l Intention:Pursuant to the Art.28 TRIPS, a right holder have the exclusive right to prevent third party making and using the patent for product without consent. There is no indication about whether “intention” is a element to constitute a infringement. In this case, Schmeiser allege that he did not intentionally to plant the seed with genes 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. However, this is does not matter about the constitution of the infringement.
l Action:
Ø First,whether growing genetically modified plants constitutes “use” of the invention of a genetically modified plant cell? Because the Monsanto only have a patent rather than the plant, Schmeiser may argue he just use hid own seed rather than the patent of Monsanto. This need the balance between the physical right of Schmeiser and the patent right of Monsanto. Actually, according to the patent description of this patent on the Canadian patent website[4], it indicate that “Such genes can be inserted into plant transformation vectors, and subsequently introduced into plant cells” which means that the gene only can be show its inventive character when it has been inserted into the plants.
Ø Second, the fact show that it is “accidentally contaminated” is hard to extend to a relatively large scope of Schmeiser’s farm, therefore he “ought to have known that”.
l Possible damage:
Ø Pursuant to the Art.30, it is possible for Schmeiser’s action fall into the exception it do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner? The answer probably be “NO” because Monsanto make profit through signing the agreement to confer use of their gene. The use by Schmeiser actually detriment the potential profit and the using mechanism of Monsanto. Therefore, there is a damage for Monsanto.
Ø However, given the fact that Monsanto is world’s leading agricultural biotechnology company and has used heavy-handed investigations and ruthless prosecutions that have fundamentally changed the way many farmers’ farm..[5] Therefore, the practical damage is little.
Ø And for Schmeiser, because he did not spray the field with glyphosate, he enjoyed no benefit and thus his profit was the same as if he has planted a non GMO canola.
Conclusion: Because there is little damage in this case, the infringement judgment is to show the court have a attitude to protect the right holder.
[1] Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902 at para. 24
[2] Harvard College v. Canada (Commissioner of Patents), [2002] 4 SCR 45, 2002 SCC 76
[3] Patent Act, R.S.C., 1985, c. P-4
[4] Patent CA 1313830, Canadian Intellectual Property Office:
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