A patent related to genetic sequences is protected if the genetic information is currently performing the functions described in the patent, according to Paolo Mengozzi, advocate-general at the EU Court of Justice. He issued the opinion in a case that concerns such a European patent held by Monsanto, in which the Court of Justice is asked for the first time to interpret the scope of EU legislation on the protection of biotechnological inventions ⁽¹⁾.

Since 1996, Monsanto has held the European patent for a DNA sequence which, when introduced into the DNA of a soy plant, makes that plant resistant to glyphosate, an herbicide produced by the same company and marketed under the name Roundup. Farmers can use the herbicide to destroy weeds without fear of damaging the soy crop. The genetically modified soy plants (RR soy, for Roundup-ready soy) are cultivated in a number of countries but not in the European Union.

In 2005 and 2006, Cefetra BV, Cefetra Feed Service BV and Cefetra Futures BV (Cefetra) imported soy meal for the production of animal feed from Argentina, where RR soy is grown on a large scale but where Monsanto does not hold a patent for the DNA sequence. During an inspection by Dutch customs officials of soy meal imported from Argentina by Cefetra, an analysis revealed the presence of traces of the DNA characteristic of RR soy, which establishes that the meal was produced from the genetically modified soy for which Monsanto holds the European patent. The Rechtbank cfsearch,cfreturn,cfproperty,cfinvokeargument,cfinvoke,cfargument,cfwddx,mm:pagebind,mm:delete,mm:insert,mm:dataset,mm:update,jsp:getProperty,MM_JSPSCRIPT,MM_CALLRESSET,MM_CALL,MM_PREPARED,MM_RESULTSET,MM_ASPNETUNKNOWNT

EXHAUSTIVE RULES

It has to be determined whether genetic information is protected as such, ie as a chemical compound, even when it is located as a kind of ‘residue’ within a product (such as soy meal) resulting from the processing of the biological product (the soy plants) in which the sequence performed its function (making the plants resistant to glyphosate). According to the advocate-general, pursuant to the directive on the legal protection of biotechnological inventions ⁽²⁾, patented DNA is only protected where it performs the function for which it was patented. Those are the only circumstances in which the protection also covers the ‘material’ in which the DNA sequence is contained. The advocate-general also maintains that the directive constitutes an exhaustive body of rules governing the protection to be recognised in the EU as accruing to a biotechnological invention and precludes national legislation from conferring protection which is wider.

⁽¹⁾ Case C-428/08, Monsanto Technology LLC/Cefetra BV and others
⁽²⁾ Directive 98/44/EC of the European Parliament and the Council, of 6 July 1998