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.
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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