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IP lawyer comments on decision in Monsanto Canada Inc. v. Schmeiser

by Randy Marusyk
MBM Intellectual Property Law ( http://www.mbm.com )

(Monday, May 24, 2004 -- CropChoice guest commentary) -- The Monsanto decision maintains that Canadian law will protect inventions for higher life forms, even though such inventions are unpatentable under the Canadian Patent Act. Essentially, it provides further clarification of the Harvard Mouse decision by establishing that higher life forms composed of patented genes and cells will be protected against infringement by third parties. Moreover, this decision has created an exception to patent infringement for innocent parties. The presumption of use by possession can be rebutted if an innocent infringer is not aware of the presence of the patented invention and evidence supports the absence of an intention to employ or gain any advantage from the invention. This exception appears to only be available until such time as the innocent infringer is made aware of his position of the patented invention. The decision also indicates that infringers will not be found liable for an accounting of profits if they do not benefit from the infringement by earning additional profits. However, other remedies are likely still available to a patent holder, including an injunction to restrain the infringing act, as well as an order for delivery-up of the infringing products.

This decision has a detrimental effect for organic farmers, who may be ordered to destroy or deliver up their seeds if genetically modified seeds contaminate their organic seeds even if the genetically modified seeds entered their fields without their participation or knowledge. Such farmers are also in danger of losing their customers as well as any certification. Organic farmers will now be forced to take additional stricter precautions to ensure that genetically modified seeds do not contaminate their crops.

For more information, contact Randy Marusyk at 613-294-2605 or Kate McDerby at 613-266-5227. To learn more about MBM Intellectual Property Law, please visit mbm.com. MBM 2004