On May 8, 2003, the Supreme Court of Canada announced that it will hear the appeal taken by Percy Schmeiser from the decision of the Federal Court of Appeal in Monsanto Canada Inc. v. Schmeiser (2002), 21 C.P.R. (4th) 1 (F.C.A.).
In the proceeding, Saskatchewan farmer Percy Schmeiser, and the corporation of which Schmeiser and his wife are principals, were accused by Monsanto of growing genetically-modified canola (marketed as "Roundup-Ready Canola") in violation of Monsanto Company’s Canadian patent, Patent No. 1,313,830 entitled "Glyphosate-Resistant Plants." The patent includes claims to the genetically-modified genes, the genetically-modified plant cells, vectors in various forms, and methods for producing genetically-modified genes and genetically-modified plant cells. Schmeiser was found to have infringed the Monsanto patent following a trial conducted before Justice McKay of the Federal Court Trial Division in June of 2000 (Justice McKay’s decision is reported (2001), 12 C.P.R. (4th) 204 (F.C.T.D.). The decision was upheld on appeal to the Federal Court of Appeal.
In the appeal to the Supreme Court of Canada, the Court is expected to address many novel and important issues in Canadian patent law, including the patentability of plants, the scope of protection granted to claims to genes and cells, the interaction between patent rights and common farming practices such as "seed saving," and the scope of infringing use.
The appeal will likely be heard in the spring of 2004.
Colin B. Ingram, Ottawa