LETTER FROM ONTARIO
Time to deconstruct our plant patent law to reasonably limit scope

Farm & Countryside Commentary by Elbert van Donkersgoed

Editor's NOTE

Elbert van Donkersgoed is the Strategic Policy Advisor of the Christian Farmers Federation of Ontario, Canada. CFFO is supported by 4,500 family farmers across the province of Ontario.

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May 27, 2004: The Supreme Court of Canada has compared Canada’s patent legislation to a structure made of Lego blocks–and in so doing has emphasized the urgent need to take those blocks apart and rebuild Canada’s Patent Act.

Last week the court found that Saskatchewan farmer Percy Schmeiser infringed Monsanto’s patent on genetically modified canola genes and cells. It was a sharply divided court that has now indirectly supported the patenting of plants, in sharp contrast to the OncoMouse decision two years ago in which this same court held that higher life forms, plants included, can not be patented under existing Canadian law.

Canada’s Patent Act strikes a bargain between inventors and the public good. Inventors make public the details of their innovation: in return the originator receives--for a period of time--a monopoly on the benefits. The principle is a sound one. Now that we see the practice applied to plants, is this bargain still appropriate?

Five justices emphasized that a patent can be infringed when you use a patented part in something that is not patented. They applied the example of building a structure with patented Lego blocks. The entire structure need not be patented in order for the user to run the risk of infringing the Lego patent. The court held that Schmeiser used Monsanto’s genetically modified canola genes and cells – Monsanto’s building blocks. These patented genes and cells just happen to be present throughout the genetically modified canola. In other words, all of the plant is protected by the Monsanto patent -- but plants can not be patented.

Four justices emphasized the need to keep a clear distinction between patents on the building blocks of plants, the genes and cells, and the unpatentable plants and their offspring. They argued that the wording of Monsanto’s actual patent claims do not extend to plants, seeds, and crops – and should not be allowed to do so indirectly. But this view would have left Monsanto with a hollow monopoly.

The Supreme Court, by sticking with a monopoly in return for disclosure, has endorsed a dramatically expanded scope for the monopoly. Patents on plants result in a dramatically different bargain between the public and inventors. Plants can reproduce themselves without the help of human intervention. Granting a patent on plants indirectly through patents on cells and genes also covers the seed and its entire offspring for 20 years. This will result in a greater transfer of economic value from the business of farming to the biotechnology inventors than exists in other fields of invention.

Our legislators need to deconstruct the building blocks of the Patent Act and rebalance the bargain.
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The Supreme Courts of Canada’s decision on Monsanto Canada Inc. v. Schmeiser can be found at http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc034.wpd.html.

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