Monsanto Canada Inc. V. Schmeiser - Consequences

Consequences

After about six years of court battling, Schmeiser guesses his legal bills have totalled close to C$400,000. Schmeiser says he has lost the right to use his strain of canola, which took him 50 years to develop, because he can not prove they do not include the Roundup Ready gene Monsanto patented. Furthermore, he says that on the advice of his lawyers, he destroyed all his seed and purchased new seed, so his strain of canola no longer exists, which presents an additional obstacle to his continuing to farm it. However, he was ordered to turn over all his remaining seed from his 1997 and 1998 crops to Monsanto, so even if he hadn't eradicated his own strain on his own initiative, it would likely not have survived. This interpretation is not consistent with the court rulings, which place no onus on a farmer in general nor Schmeiser in particular (for example, see paragraph 76 of the Federal Court of Appeal ruling) to prove the absence of the patented gene prior to growing seed.

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)

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. 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. "The court record shows, however, that it was not just a few seeds from a passing truck, but that Mr Schmeiser was growing a crop of 95–98% pure Roundup Ready plants, a commercial level of purity far higher than one would expect from inadvertent or accidental presence. The judge could not account for how a few wayward seeds or pollen grains could come to dominate hundreds of acres without Mr Schmeiser’s active participation, saying ‘. . .none of the suggested sources could reasonably explain the concentration or extent of Roundup Ready canola of a commercial quality evident from the results of tests on Schmeiser’s crop’" - in other words, the original presence of Monsanto seed on his land in 1997 was indeed inadvertent, but the crop in 1998 was entirely purposeful.