A canola farmer (“Schmeiser”), who did not purchase Roundup-tolerant canola (“Roundup-Ready Canola”) or obtain a licence to plant it, was found to have grown most of his crop in the form of Roundup-Ready Canola. S. 42 of the Patent Act conferred on the respondent (“Monsanto”), which held the patent on the Roundup resistant gene and related modified cells in Roundup-Ready Canola, “the exclusive right … of … using the invention and selling it to others to be used”. Before going on to find that Schmeiser had infringed Monsanto’s patent, McLachin CJ and Fish J stated (at para. 58):
1. “Use” or “exploiter”, in their ordinary dictionary meaning, denote utilization with a view to production or advantage.
2. The basic principle in determining whether the defendant has “used” a patented invention is whether the inventor has been deprived, in whole or in part, directly or indirectly, of the full enjoyment of the monopoly conferred by the patent. …
5. Possession of a patented object or an object incorporating a patented feature may constitute “use” of the object’s stand-by or insurance utility and thus constitute infringement.