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Profile: Andrew MacKay

Andrew MacKay was a participant or observer in the following events:

Canadian Federal Judge Andrew MacKay rules in favor of Monsanto in its case against Canadian canola farmer Percy Schmeiser (see June 5, 2000-June 21, 2000). [Star Phoenix (Saskatoon), 3/30/2001]
Judge MacKay decides the following: -
bullet That all test results submitted to the court as evidence by Monsanto was admissible and worthy of consideration by the court. The test results had indicated that a high percentage (in most cases, more than 90 percent) of the seed present in several samples presumably taken from Schmeiser’s canola fields contained Monsanto’s patented Roundup Ready gene. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that the samples had been taken illegally and were invalid because they were not obtained, stored, or tested in a scientific manner or by independent parties. Schmeiser’s lawyer also raised questions about the authenticity of the samples noting multiple contradictions in the observed properties of the samples as they changed possession from one person to another. The judge dismissed all of these concerns insisting that certain “conclusions of fact” could nonetheless be “drawn from evidence of the various tests.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 34 pdf file; Star Phoenix (Saskatoon), 3/30/2001]
bullet That based on expert testimony and results from the tests on samples taken from Schmeiser’s property, “none of the suggested possible sources of contamination of Schmeiser’s crop was the basis for the substantial level of Roundup Ready canola growing in field number 2 in 1997.” (“Field number 2” is the field where Schmeiser discovered the presence of Roundup Canola in 1997 (see Summer 1997)) [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 pdf file]
bullet That “the source of the Roundup-resistant canola in the defendants’ 1997 crop is really not significant for the resolution of the issue of infringement which relates to the 1998 crop.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51 pdf file]
bullet That Schmeiser infringed on Monsanto’s patent when he planted seed that he “knew or ought to have known” contained Monsanto’s patented gene. Judge MacKay disagrees with the defense’s argument that in order to have used the essence of Monsanto’s patent, Schmeiser would have had to have applied Roundup to his crop. According to MacKay, the acts of replanting and selling the seed in and of themselves constituted use of the patent’s essence. “Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’ invention, using it, without permission.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 51-53 pdf file; Star Phoenix (Saskatoon), 3/30/2001]
bullet That the law of admixture and the precedent set by “stray bull” cases do not apply to this case. What distinguishes this case from cases where admixture is relevant, says MacKay, is that “Monsanto does have ownership in its patented gene and cell and pursuant to the [Patent] Act has the exclusive use of its invention.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55-56 pdf file]
bullet That Monsanto’s patent is valid. MacKay rejects Zakreski’s argument that the Harvard Mouse case relates to this case in the way he described. Rather according to MacKay, while that case concerned the patent on an organism, this case concerns a gene, the process for its insertion, and the cell derived from that process. As such, the Harvard Mouse case “implicitly support[s] the grant of the patent to Monsanto.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40 pdf file]
bullet That Monsanto’s patent rights on its Roundup-resistant gene persist even after it has inserted itself into a plant owned by someone else. Schmeiser’s lawyer had argued (see June 5, 2000-June 21, 2000) that Monsanto’s patent confers only intellectual property rights, not actual property ownership rights, of the gene to the company and that therefore the insertion of Monsanto’s patented gene into a plant owned by someone else does not make that plant or its offspring property of Monsanto. While Judge MacKay agrees with the defense that the property ownership rights over a plant would not change in such a case, MacKay says that the interest of the person who owns that plant would nonetheless be subject to Monsanto’s patent rights. “Thus,” writes Judge MacKay, “a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbor’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-41 pdf file; Star Phoenix (Saskatoon), 3/30/2001; Natural Life, 5/2001]
bullet That Monsanto did not implicitly waive its patent rights on the Roundup Ready gene because of any alleged failure to control the spread of its gene, as the defendant argued (see June 5, 2000-June 21, 2000). According to Judge MacKay, Monsanto has taken adequate steps to control the spread of its product. He cites Monsanto’s efforts to limit the use of the invention to only those plots of land farmed by licensed farmers for which the technology use fee has been paid; the company’s efforts to enforce the terms of its Technology Use Agreement; and the company’s efforts to remove plants that have invaded the properties of other farmers. MacKay makes little of the several photographs that Schmeiser had taken of Roundup-resistant Canola volunteers that he discovered scattered though out his community. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 40-44 pdf file]
bullet To issue an injunction barring Schmeiser from planting “any seed saved from plants which are known or ought to be known to be Roundup tolerant, and from selling or otherwise depriving the plaintiffs of their exclusive right to use plants which the defendants know or ought to know are Roundup tolerant, or using the seeds from such plants.” [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 55 pdf file]
bullet That Schmeiser’s unauthorized use of Monsanto’s patented gene entitles the company to the profit realized by Schmeiser as a result of the sale of his 1998 crop, plus interest. However Judge MacKay believes that Monsanto has overstated Schmeiser’s profit because it did not factor in his labor as an expense. MacKay also disagrees with the plaintiff that exemplary damages are warranted in this case. MacKay gives Schmeiser and Monsanto three weeks to agree on the value of Schmeiser’s 1998 profit. If they cannot come to an agreement by then, Schmeiser is to pay Monsanto the sum of $15,450 CAD, or $15 CAD/acre planted and harvested in 1998. [Monsanto Canada Inc. v. Percy Schmeiser, 3/29/2001, pp. 56-60 pdf file]

Entity Tags: Monsanto, Percy Schmeiser, Andrew MacKay

Timeline Tags: Seeds

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