Recently, Prime Minister Justin Trudeau made an announcement that Federal Government would be supplying Merit Functional Foods with an interest-free $10 million loan through . is a Canadian company that manufactures high-quality plant-based proteins, such as pea protein and canola protein, using Canadian crops. The $10 million loan brings the project’s total government backing to , which Merit plans to use towards completing its state-of-the-art, 94,000 square foot . The facility is scheduled for completion by the end of 2020.

The project was partly funded by , which aims to accelerate the commercialization of innovating technologies that increase Canadian agriculture’s competitiveness and sustainability. Project applications are prioritized based on whether they advance the government’s agenda in particular areas, one of those being the adoption of “world leading clean technology.”

While it’s unclear if the Merit project was prioritized through its classification as clean technology, it is clear based on the scientific record that an investment in plant-based food science is an investment in such technology.

Background on the Plant-Based Movement

As someone who grew up in a vegetarian household, I was highly aware of the early phases of the plant-based movement in North America. was an important book in our family, brought down from the bookshelf every few months for re-examination.

Recently, however, plant-based foods have been gaining popularity at an unprecedented rate. It’s not exactly clear what led to this change, but easy access to documentaries like on Netflix and support from celebrities through things like Beyonce’s certainly didn’t hurt.

Today, some might say the final frontier has been reached: the fast food industry. There has been a major rollout of across McDonald’s, A&W, Wendy’s, and KFC. Even Maple Leaf Foods, a meat company, has introduced a , consisting of 50% meat and 50% plant-based protein, which the company says will help consumers “eat less meat, without giving it up all together.” With the number of US food and drink products using the words “plant-based” in their labelling , the plant-based movement is clearly gaining serious momentum.

The term refers to processes or products that improve environmental outcomes, including reducing greenhouse gas emissions, land degradation, and water and air pollution. Innovative plant-based foods, their chemical makeups, and their manufacturing processes fall into this category, because they reduce or eliminate the environmental impacts of meat consumption.

The Environmental Impact of Meat Consumption

The meat industry is in four specific ways: (1) emission of greenhouse gases; (2) acidification and eutrophication of the environment; (3) consumption of natural resources, in particular energy and water; and (4) pollution from animal waste and waste water discharge.

In 2006, the Food and Agriculture Organization of the United Nations published on the various environmental impacts of livestock production. Some key statistics include:

• The total area dedicated to livestock feed crop production is 33% of total arable land
• The livestock sector is the largest anthropogenic user of land, taking up 26% of all ice-free terrestrial surface
• Deforestation and other land use changes emit 2.4 billion tonnes of CO2 per year
• The livestock sector is responsible for 18% of greenhouse gas emissions
• On-farm fossil fuel use may emit up to of CO2 per year
• The livestock sector is responsible for 64% of anthropogenic ammonia emissions, which contribute significantly to acid rain
• The meat industry is the largest sectoral source of water pollution, responsible for ⅓ of the nitrogen and phosphorus loads in freshwater resources in the US, as well as heavy metals, pathogens and drug residues
• Livestock require an enormous amount of water. For poultry, it’s highest, at an estimated and for dairy, it’s .

This and other evidence led the Intergovernmental Panel on Climate Change to recommend dietary changes in its in 2016. The Report suggests that diets featuring plant-based foods “present major opportunities for adaptation and mitigation ... By 2050, dietary changes could free several million km of land and provide a technical mitigation potential of 0.7 to 8.0 GtCO2eq (), relative to business as usual projections.” Clearly, innovative plant-based food production is clean technology worth investing in.

Of course, plant-based foods come with their own problems (think monocultures, , for example). However, if individuals choose their plant-based options wisely, and the government continues to support research and development in the plant-based food industry, the availability of innovative plant-based foods may have a significant impact on the environment.

It’s exciting to see the Canadian government investing in clean technology through a variety of channels, including through agricultural innovation. It shows that Canada is serious about investing in the health and economic prosperity of its citizens by providing jobs, keeping the supply chain within Canada, and protecting our environment.

Written by Rachel Marcus. Rachel is going into her third year at Osgoode Hall Law School. She is a Fellow with the IP Osgoode Innovation Clinic, and a student in the IP and Technology Law Intensive.

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By most if not all - ()()(), the Court showed little sympathy for Bowman's position, appearing prepared to uphold in favour of Monsanto and patent rights-holders. While one could not contradict the Court on applying current law, there seemed to be an unacknowledged tension running through the hearing, between applying the law as it is and questioning what it ought to be in the face of unprecedented situations in patent law and related intellectual property issues.

I. Prologue: “Two parties, unalike in privity...”

Enter the facts. Monsanto sells certain types of soybean (and other) seeds with a patented gene that makes them resistant to Roundup, a Monsanto herbicide. Farmers who buy seeds from Monsanto must sign a contract binding them to using the seeds only once; they cannot plant seeds descended from the bought seeds. However, Monsanto allows farmers to sell, under no special conditions, descendant seeds to grain elevator mixtures. Bowman bought and planted such a mixture and harvested seeds from the plants that survived Roundup spraying, which indicated they were resistant.

The central issue of the case is whether or not Bowman planting descendants of the original seeds he bought constitutes patent exhaustion. Does Monsanto's patent reside only in the first generation of seeds sold to farmers, or does it reside in all seeds with the Roundup-resistant gene, including those grown into existence after sale?

II. Submission for Monsanto: “Justice! the law! my dockets, and my patents!”

Monsanto argues that if withers with the first sale of seeds alone, then the patent would quickly cease to have effect as all buyers could easily grow their own seeds from saved ones every year, instead of having to buy more from Monsanto. This, Monsanto contends, would “devastate innovation in biotechnology”. According to Monsanto, patent exhaustion does not include a right for the buyer to make unlimited copies of the sold item. Intervenors such as the added that patent exhaustion does not apply at all, as the new seeds are “new articles of manufacture”.

At the hearing, the justices raised challenges such as whether a Monsanto-favouring decision would have “the capacity to make infringers out of everybody”, due to the fact that Monsanto holds a near-total monopoly over soybean seeds, and due to events such as patented seeds into the fields of other farmers. The latter issue is particularly in light of .

III. Submission for Bowman: “Fare you well; your suit is cold.”

According to Bowman, Monsanto's first sale of the seeds exhausts the patent, and that's all there is to it; the buyer may do anything they like with the item after that. In perhaps a patent version of the thin-skull rule (obvious foreseeability notwithstanding), Bowman's argument implies that it's simply unfortunate Monsanto's patent happens to reside in something that is self-replicating and thus patent-undermining ; that is the liability one assumes with living organisms. Both Bowman and Monsanto claim that the other is asking the Court to carve out an exception in their favour.

Counsel for Bowman received a , with the justices actively putting him on the defensive regarding issues such as: the potential destruction of Monsanto's and similar patents flowing from a decision for Bowman; the inadequacy of contracts to replace patent protection; farmers' rights (or lack thereof) to exploit the self-replicating nature of seeds to go around Monsanto's patent; how frequent a practice it is for farmers to use grain elevator seeds for crops (and thus how severely an adverse decision would impact them); and whether or not counsel was mischaracterizing Monsanto's claim.

IV. Epilogue: “The course of true law never did run smooth.”

As mentioned, this case has the potential to set off trajectories in IP law far beyond what farmers may do with soybean seeds, and perhaps calls for more than straightforward application of existing law. First, the tellingly acted as intervenor for Monsanto, fearing a decision for Bowman could set a precedent applicable to and copyright. Multiple parties strengthened this nexus by citing ��(about making disk copies in a jurisdiction abroad),��and some have extended this connection to include cell lines and DNA used in medical research, not to mention .

Second, Monsanto argued that “size has never been thought to affect the contour of patent rights”. With anti-competition concerns such as and , however, the Court might consider whether size should, in fact, matter. Urgency arises in view of the fact that 93 percent of American-farmed soybeans (along with nearly 90 percent of both cotton and corn) were genetically engineered in 2010, according to a by , intervenor for Bowman.

Third, the justices consistently challenged Bowman on the idea that biotechnology patents should be exhausted on first sale in the case of ��. Justice Ginsburg asked, “Where is that in the law?” The problem here is that with the biotechnology in question, self-replication is the biology, not the technology; Monsanto did not invent photosynthesis. Current patent law as the Court seems poised to interpret it, however, treats the seeds and buyers as if Monsanto did.

Justice Ginsburg is correct in that Bowman's position is not in the law—and perhaps it . We can only hope that after having ��the various high stakes involved, the Court will hand down a decision that more fully speaks to the of whether or not, and how, it ought to be.

Cynthia Khoo is a JD Candidate at the University of Victoria.

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In an , Javier Fernandez, a lawyer for CropLife Latin America, argues that better protection of regulatory data is necessary in order to foster innovation in the agricultural industry. In consideration of projections of an exploding global population, a decreasing amount of natural resources, and the greater reliance of farmers (especially in developing countries) on efficient technologies to remain profitable so that they can continue to produce, proper stimulation of the agricultural industry may be vital. Intellectual property law has historically been used as a means of shaping a variety of industries, but the standard protection of the final invention is sometimes not enough of an economic incentive for companies to continue productive research. By protecting the large amounts of useful data that innovative companies have discovered while developing a new product, and which they must release to regulatory bodies to judge safety and efficacy, these companies are more likely to continue investing in such costly research.

Mr. Fernandez believes that there are two main ‘prongs’ of regulatory data protection, which he calls ‘data protection’ and ‘data confidentiality’. The first prong has to do with implementing an exclusivity period in which “third parties are precluded from relying on the originator’s proprietary test data to obtain their crop protection product marketing approvals”. The second prong requires regulatory bodies to maintain high standards with the information that they collect. Despite legitimate reasons for release to the public of this data (such as for public safety, non-commercial research, education, etc.) the release of this information should be strictly controlled, keeping in mind the interests of the company that originally produced it.

This additional layer of protection on top of standard patent protection can be said to be needed because the data must be released in order to get approval for the originator’s product from a regulatory agency and so it can be used by another company to get approval for a similar product that may not infringe on the originator’s patent.���� (TRIPS) agreement provides that member states “shall protect [test and other] data against unfair commercial use ... [and] against disclosure”. As an example of the rationale underlying such a provision, the Pest Management Regulatory Agency of Health Canada uses the following as one of its objectives in its :

A policy that provides fair protection of the proprietary interests in data to encourage the introduction of new and reduced-risk pest control products while providing a predictable, timely process for the introduction of competing generic pesticide products to the Canadian market.

A separate argument for greater protection of regulatory data that is made in the article is that “[i]mproper reliance on originators’ proprietary data increases the possibility of substandard, copycat products reaching the marketplace that can pose unacceptable risks to health and the environment”. This seems quite sensible, but if safety is an actual concern, then it should follow that such an exclusivity period ought to be infinite, meaning that third parties should never be allowed to use another company’s regulatory data to get approval for a separate product. Understandably, this argument can be viewed outside of the sphere of intellectual property, but one of the ideas simultaneously brought up by Mr. Fernandez is that third parties can obtain licences to use the originator’s information, and this does not seem to mesh with the idea of maintaining high safety standards.

The substance of this topic is very applicable to other industries as well. This past summer, for example, there were many in the U.S. over legislation that touched on the exclusivity period for biologics companies. The economic bases that underlie these sorts of debates obviously vary by sector, and so research is always necessary to determine the likely market consequences that would follow with any amendment to the law. Within the agricultural industry specifically, given the wide social implications mentioned earlier, it is crucial that a correct balance is struck in order to benefit all interests at stake.

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