LGLS 3530U Lecture Notes - Lecture 1: Percy Schmeiser, Glyphosate, Herbicide
Monsanto Canada Inc v Schmeiser
1. Facts: Percy Schmeiser has farmed in Saskatchewan for more than 50 years. In 1996 he
assigned his farming business to a corporation in which he and his wife are the sole
shareholders and directors. Six years before assigning his farm to a corporation, five
farmers in Mr. Schmeiser’s area switched to Roundup Ready Canola, a canola containing
the patented genes and cells to resist herbicide. This product had been patented by
Monsanto. Monsanto licenses farmers to use their product at a rate of $15 per acre.
Schmeiser never purchase Roundup Ready Canola nor did he obtain a license to plant it.
Despite this, in 1998, tests revealed that over 95% of his 1,000 acres of canola crop was
make up of Roundup Ready plants. The origin on the plants is unclear. It is possible that
they may have derived from seed that blew onto Schmeiser’s land and was then collected
from plants that survived after Schmeiser sprayed Roundup herbicide around the power
poles and in the ditches along the roadway bordering four of his fields. The fact that these
plants survived the spraying indicated that they contained the patented gene and cell.
2. Issue: This issues regarding this appeal are whether Schmeiser infringed Monanto’s
patent and if so, what remedies Monsanto can claim.
3. Analysis: Patent is titled “Glyphosate-Resistant Plants”, issued 2/23/1993 and expired
2/23/2010. It discloses the invention of genetically engineered genes and cells containing
those genes which, when inserted into plants (in this case canola), dramatically increase
their tolerance to herbicides containing glyphosate. This seed has been marketed to
farmers under the trade name “Roundup Ready Canola”. grown in Canada. Monsanto
requires a farmer who wishes to grow Roundup Ready Canola to enter into a licensing
arrangement called a Technology Use Agreement (“TUA”). They must, however, sell
that crop for consumption to a commercial purchaser that is pre-authorized by
Monsanto. The licensed farmers may not sell or give the seed to any third party, or save
seed for replanting or inventory. The TUA gives Monsanto the right to inspect the fields
of the contracting farmer and to take samples to verify compliance with the TUA, as a
Roundup Ready Canola plant cannor be distinguished from other plants without a
chemical test.. The farmer must also pay a licensing fee for each acre planted with
Roundup Ready Canola. In 1998, the licensing fee was $15 per acre. The trial judge
found the patent to be valid. The patented claims are for: a chimeric gene, an expression
vector, a plant transformation vector, plant cells and a method of regenerating a
glyphosate resistant plant. Schmeiser did not make or construct the patented gene. It turns
out that Schmeiser did use the patented gene without a license. Mr. Schmeiser took the
harvest he had and saved it in a pick-up truck then it to a seed treatment plant and had it
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Document Summary
Monsanto canada inc v schmeiser: facts: percy schmeiser has farmed in saskatchewan for more than 50 years. In 1996 he assigned his farming business to a corporation in which he and his wife are the sole shareholders and directors. Six years before assigning his farm to a corporation, five farmers in mr. schmeiser"s area switched to roundup ready canola, a canola containing the patented genes and cells to resist herbicide. Monsanto licenses farmers to use their product at a rate of per acre. Schmeiser never purchase roundup ready canola nor did he obtain a license to plant it. Despite this, in 1998, tests revealed that over 95% of his 1,000 acres of canola crop was make up of roundup ready plants. It discloses the invention of genetically engineered genes and cells containing those genes which, when inserted into plants (in this case canola), dramatically increase their tolerance to herbicides containing glyphosate.
