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I just saw "Food Inc" last night, a 2008 movie about the food industry.

In the movie they detail how Monsanto was targetting farmers who were trying to grow their own seed and suing them. What would happen is that a neighboring farm would be using Monsanto's genetically modified seed and some of the pollen would drift over into the natural farmers soybeans and cross polinate them. Monsanto would then send PIs to find such cross polinated growths and then threaten to sue the farmer for violating their "gene patent" unless the farmer agreed to buy Monsanto seed.

Is Monsanto still doing this? What is the legal basis for this?

  • The legal basis is simply patent infringement, I think. – Nate Eldredge Nov 18 '16 at 18:52
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Monsanto has never sued for mere wind-blown seed let alone inadvertent cross-pollination and they claim that they will never do so.

They say:

[I]t has never been, nor will it be, Monsanto’s policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in a farmer’s fields as a result of inadvertent means

In OSGATA v Monsanto, the CAFC noted this position. They relied on it, and thus Monsanto is estopped from judicial actions contrary to this stated position.

If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel.

When Monsanto has sued, it has always been the case that the defendant has taken deliberate action to exploit the seed or traits. For example, planting soybeans intended for the food market (Bowman v Monsanto), and harvesting, storing, and replanting Roundup resistant beans discovered on his property (Monsanto v Schmeiser 2004 SCC 34, para 60-68).

  • Have there been any cases where the defendant claimed the infringement was inadvertent, but either lost the case or settled? Who would have the burden of proof? – Nate Eldredge Nov 18 '16 at 19:12
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To Nate Eldrege: Monsanto v Schmeiser 2004 SCC 34 is an example where the defendant claimed that the infringement was inadvertent, but lost the case. See para 60-68 for a summary of why the trial judge rejected Schmeiser's claim that the concentration of Roundup-resistant seed was inadvertant.

In Canada, possession of a patented product for trade brings the presumption of use, and the burden is on the defendant to show otherwise. Quotes from Monsanto v Schmeiser:

The onus of proving infringement would become impractical and unduly burdensome in cases of possession were the patent holder required to demonstrate the defendant’s intention to infringe. As Professor Vaver explains, “[m]ere possession may not be use, but a business that possesses a patented product for trade may be presumed either to have used it or to intend to use it, unless it shows the contrary”.

Possession, at least in commercial circumstances, raises a rebuttable presumption of “use”. While intention is generally irrelevant to determining whether there has been “use” and hence infringement, the absence of intention to employ or gain any advantage from the invention may be relevant to rebutting the presumption of use raised by possession.

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