March 2010
The Advocate General of the European Court of Justice (ECJ) has issued an opinion on the questions of interpretation of the EU Biotech Directive, which the Dutch Courts referred to the ECJ.
Monsanto own a European patent, 0 546 090, for DNA which makes soy plants resist a herbicide (glyphosate). They sued Cefreta, a Dutch soy meal importer, for infringement. Cefreta had imported soy meal containing Monsanto’s claimed DNA. The soy meal was imported from Argentina (where Monsanto do not have a patent).
The Dutch Courts asked the ECJ if the presence of the claimed DNA in soy meal would infringe the patent, under the terms of the Biotech Directive.
The Biotech Directive states that patent for a product including genetic information shall protect material incorporating the product in which the genetic information performs its function.
The Dutch Courts specifically asked if this protection included circumstances where the genetic material has performed, or could still perform, its function.
The Advocate General’s opinion is that the Biotech Directive restricts patent protection for a gene sequence to situations in which the genetic information currently performs the function described in the patent. This applies to the DNA and the product containing it.
The imported soy meal contains the claimed DNA, but the DNA, as part of the soy meal, cannot “currently” perform its herbicide-resistant function.
If the ECJ decision follows the Advocate General’s opinion, the soy meal will not fall within the patent claims in the Netherlands, and Cefreta will not infringe Monsanto’s patent.
The Advocate General’s opinion is non-binding on the ECJ. Approximately 25% of ECJ decisions do not follow the Advocate General’s opinions. Monsanto can still hope that the ECJ decision will not agree with the above opinion.
We do not yet know when the ECJ decision will issue. Whatever the court decides, the decision will have a great impact on existing and future European patents for genetic material.
Links: