Intellectual Property Forums (

(Message started by: fpicard on Nov 22nd, 2005, 3:57pm)

Title: Chain of titles, chain of life
Post by fpicard on Nov 22nd, 2005, 3:57pm
Let's re-think Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902

Let's suppose canola grower N.
N buys gmo canola seeds from the company M, under terms of license.
The gmo canola seed from N is patented ;)
Claim 1 of M pertains to a chimeric plant gene. (See CA 1,313,830)
Canola grower S is a neighbor of N.
Pollen from the gmo canola of N is transported, let's suppose by winds, over the fields of S.
Pollen emitted by N comprises the chimeric plant gene.
Pollen from N fertilizes the canola of S.
Unfertilized canola of S doesn't contains the chimeric plant gene.
Once fertilized, a new canola seed, in the field of S, contains the chimeric plant gene.

Does the chimeric gene, in the pollen, emitted by the canola of N is still under license ? Is there an implicit license on the pollen ?

If no, is N in violation of its license contract with M ?

If no, is any propagation of the pollen the sole responsability of N ?

If no, is any tort or liability would be on N ?

If the pollen is still under license, would the chain of titles would apply to a seed, fertilized by the pollen ?

Is the S seed, comprising the chimeric gene, would still be under license ?

Because the S seed is still under license, would S infringe the M patent ?

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