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[SANET-MG] judegment on polluted must pay case
SUPREME COURT OF CANADA -- JUDGMENT TO BE RENDERED IN APPEAL
OTTAWA, 14/05/04. THE SUPREME COURT OF CANADA ANNOUNCED TODAY THAT
JUDGMENT IN THE FOLLOWING APPEAL WILL BE DELIVERED AT 9:45 A.M. ON
FRIDAY, MAY 21, 2004.
FROM: SUPREME COURT OF CANADA (613) 995-4330
COUR SUPRÊME DU CANADA -- PROCHAIN JUGEMENT SUR APPEL
OTTAWA, 14/05/04. LA COUR SUPRÊME DU CANADA A ANNONCÉ AUJOURD'HUI QUE
JUGEMENT SERA RENDU DANS L'APPEL SUIVANT LE VENDREDI 21 MAI 2004, À 9 H 45.
SOURCE: COUR SUPRÊME DU CANADA (613) 995-4330
Percy Schmeiser, and Schmeiser Enterprises Ltd. v. Monsanto Canada Inc.,
et al. (FC)(29437)
29437 Percy Schmeiser et al v. Monsanto Canada Inc. et al
Property Law - Patents - Agricultural products - Genetically modified
plants - Respondents invent and patent a genetic insert into genes of
canola plant that produces a plant resistant to glyphosate herbicide -
Genetically modified crop sold to licensed growers and controls placed
on licensees' harvesting and use of seed - Farmer discovers genetically
modified canola growing on his field - Farmer not a licensed grower -
Transfer of genetically modified canola to farmer's fields occurs
without farmer's participation or knowledge - Whether subject matter
claimed in Patent 1,313, 830 lies outside the Patent Act - If not,
should the patent be given a narrower scope - If not, should farmer ge
granted an implied license to continue to save and re-use seed that may
contain the patented gene absent exploitation - If not, should Monsanto
have been awarded the entire profit from farmer's 1998 canola when he
did not benefit or profit from the infringement.
The Respondents are the owner and licensee respectively of Canadian
patent number 1,313,830, entitled "Glyphosate-Resistant Plants", issued
on February 23, 1993 and expiring on February 23, 2010. Since 1996,
canola seed containing the inserted gene has been produced in Canada
under license from the Respondents and marketed to farmers under the
trade name "Roundup Ready Canola", reflecting its resistance to the
glyphosate based herbicide "Roundup" manufactured by the Respondents. A
farmer who wishes to grow Roundup Ready Canola must enter into a
licensing agreement called a Technology Use Agreement (TUA). The
Appellant Percy Schmeiser has been farming in Saskatchewan for
approximately 50 years and has grown canola since the 1950's. Schmeiser
Enterprises Ltd. is a corporation of which he and his wife are the only
shareholders and directors, and to which Mr. Schmeiser assigned his
farming business in 1996. His last purchase of canola seed before trial
was in 1993. The uncontradicted evidence of Mr. Schmeiser was that he
has never purchased Roundup Ready Canola and has never signed a TUA
relating to Roundup Ready Canola.
In 1996, there were five growers in the area who grew Roundup Ready
Canola under license. One grew Roundup Ready Canola on a field
diagonally adjacent to one of Mr. Schmeiser's fields of canola. In late
June or early July of 1997, Mr. Schmeiser and his employee Carlyle
Moritz hand sprayed Roundup as a normal weed control practice around
power poles and in the ditches along the roadway bordering four of Mr.
Schmeiser's fields. Several days later, a large number of canola plants
had survived and Mr. Schmeiser conducted a field test on three acres.
Approximately 60% of the canola plants survived in clumps, thickest near
the road and thinner as one moved into the field.
Experts for the parties conducted a number of tests on the canola plants
growing beside the subject field in 1997, some seeds from those plants,
canola plants growing in all the Schmeiser fields in 1998, and samples
of seed retained by the mill that mixed Schmeiser Enterprises Ltd.'s
seed in the spring of 1998. The tests indicated the presence of the
patented gene. The trial Judge found that certain claims of the patent
had been infringed and he granted the Respondents an injunction, an
order for delivery up and an award of damages against Schmeiser
Enterprises Ltd. in the amount of $19,832, representing the trial
judge's accounting of profits. The Appellants appealed and the
Respondents cross-appealed, eventually limiting their cross-appeal to a
claim that the award of damages was too low. The Court of Appeal
dismissed the appeal and the cross-appeal.
Origin of the case: Federal Court of Appeal
File No.: 29437
Judgment of the Court of Appeal: September 4, 2002
Counsel: Terry J. Zakreski for the Appellants
Roger T. Hughes Q.C. for
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