Pirate or Prophet? Monsanto Canada Inc. v Schmeiser

• Author: Patricia L. Farnese
• Pages: 425-454

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Pirate or Prophet?

MonsantoCanadaIncvSchmeiser

PatriciaLFarnese

Introduction

TS  C  Canada’s (SCC) decision in MonsantoCanadaIncvSch-

meiseris likely most remembered for what it did not decide. By beginning

the majority’s decision with an outline of what the court would not address,

McLachlin CJ and Fish J, clearly understood that much of the public’s inter

estinthiscaseconcernedanumberofbroaderissuesSpecicallythecourt

stated:

weemphasize from theoutset that weare notconcer nedhere with thei n

nocentdiscoverybyfarmersofblowbypatentedplantsontheirlandorin

theircultivatedeldsNorareweconcernedwiththescopeoftherespond

entspatent orthe wisdom andsoc ialuti lityof the geneticmodicat ionof

genesa ndcells  apractice authorized by Parliamentu nderthe PatentAct

and its regu lations.

Nonetheless, the story of Monsantov Schme iser is as much the story of

howthiscasedrewg lobalaentiontothesebroaderissuesasitisaboutthe

narrow issue of patent infringement. Th is story is also about two fascinat

ing protagonists, Monsanto and Percy Schmeiser, in what has often be en

described asa modern balebetween David andGoliath For many, Sch

meiser, like David, remains a folk hero whose ongoing public life continues

todrawaentiontothiscase

ﾈﾆﾊPatriciaLFarnese

Monsanto

M agricultural biotechnologycompanyItsnet

sales from its seeds and genomics and agric ultural productivity divisions

wereclosetobil lionUSD The seeds and genomics divi sion sells prod

ucts with biotechnology traits while t he agricultural productivity divi sion

mainly refers to the company’s agricultural chemical bu siness. The com

pany’s sale of glyphosate, branded as Roundup, constitutes the majority of

its chemical business. Monsanto’s commodity crop seeds — such as can

olacoonsoybeansand cornareglobal lyavailable Monsanto’s global

reach comes through both the di rect marketing of its own branded seeds

and chemicals, and thr ough the licensing of its patented technology and

genetic material to other companies.

Monsanto, however, did not begin as an agriculture company and for

many, what Monsanto was cannot be sepa rated from what Monsanto has

becomeInJohnFQueenyformedacompanyandpurchasedt hema

terials and technology to produce sacchar ine. Queeny chose to use his wife

Olga’s maiden name, Monsanto, as his new company’s name. Derived from

benzoicsulmidea ndsignicantlysweeter thansucroseQ ueenyhopedto

provide a local source of saccharine in t he US. His investment was rewarded

when The Coca Cola Co. purchased all of the saccha rine Monsanto produced

inand ByMonsant ohaddevelop edothe rchem icaladdit ives

for use in food products including vanil linandcaeine

Fueled by its success in the food additive business, Monsanto continued

to expand and diversify its chemical busi ness. Monsanto began to manufac

turesty reneandpolystyrene plasticswhichby theswerethecent ral

focusofitsbusine ssInMonsantohadthem isfortuneofbecomi ngin

volved in what has been described as the “most devastating industrial acci

dent in US history.” A French freighter, the S.S.Grandcamp, was unloading

ammoniumnitratefertilizerwhenitcaughtreintheTexasCityharbour

Monsanto was located dockside. Thus, when the S.SGrandcamp ex ploded,

itt riggered res at the Monsanto facility resu lting in hundreds of deaths

and thousands of injuries. In addition to the loss of many of its employees,

Monsantospolystyrenefacilitysueredconsiderabledamageand released

fueloilbenzeneandstyreneintotheenvironment The Texas City disaster

introduced most of the public to Monsanto.

Monsanto’s involvement with polychlorinated biphenyls (PCBs) during

thesandslikelyunderliessomeofthepublicdist rustofMonsanto