Perm do both is functionally perm do the aff – Monsanto v Schmeiser prove the aff overrides the sui generis right

One of the preconditions for determining patent infringement is whether the patented subject has been used. For this reason, it needs to be determined whether cultivating plants containing the cell and gene may amount to infringement, or if a patent might be infringed only by "patented invention in isolation." The Supreme Court pointed to the commercial nature of agriculture and dismissed the farmer's argument that patent infringement should be interpreted narrowly because plants reproduce themselves "through the laws of nature, rather than human intervention."118Link to the text of the note The Supreme Court decided the dilemma between patent protection and property rights of farmers - invoking essentially the concept of farmers' rights - in favour of patent protection, extending it over genes as well as modified cells.

The fact that, in the Supreme Court's reasoning, the patent might be infringed in a situation where the intent or use of the gene is absent seems to be important in this regard. However, the dissenting opinion to the judgment suggests that enabling gene and cell claims to extend patent protection to plants might undermine the flexibility under Art.27.3(b) of the TRIPs Agreement.121Link to the text of the note Moreover, it is also suggested that applying the sui generis system of protection - which was already in place at that time in Canada - would be more appropriate, since the patent protection should not take precedence in cases where another, more tailored form of intellectual property protection is in place. The term "sui generis" means "of its own kind" [*101] and is often used to describe unique or specific systems or arrangements. In the context of intellectual property rights related to biodiversity and traditional knowledge, a sui generis system refers to a framework tailored to address the unique characteristics and needs of traditional knowledge holders and indigenous communities.124Link to the text of the note

The dissenting opinion suggests that a more sensitive approach would contribute to a better balance between the interests of biotechnology and farmers. However, the Supreme Court still managed to send a signal to biotechnology industry: even though it concluded the existence of patent infringement, it did not award any damages to Monsanto. In this way, the Supreme Court essentially removed the monetary incentive to initiate a lawsuit by making clear that not even the interpretation of patent law in favour of industry necessarily assures the award of damages.

Nevertheless, the answer to the question essentially posed by Percy Schmeiser - where do Monsanto's rights end and his rights begin - was not answered in Schmeiser's favour. From the perspective of resilient food production, in Schmeiser's opinion, it is rather questionable whether bioengineered food crops protected by patents have substantially improved yields and resulted in reduced use of pesticides and herbicides. It is quite undisputable that these bioengineered products have considerably increased the profits of corporations holding patent rights over them. However, it has been suggested that the track record since the introduction and boom of patents over plants demonstrates a loss of biodiversity, extended use of pesticides and herbicides, as well as lower crop yields.