Brussels, 06/07/2010 (Agence Europe) - In its judgement on case C-428/08 delivered on 6 July, the Court of Justice, meeting in grand chamber, ruled that a European patent can only be invoked in relation to an invention which actually performs the function for which it is patented. Thus, the US company Monsanto cannot prohibit the marketing in the EU of Argentinean soy meal containing, as a residue, a DNA sequence for the protection of soybean plants (“RR soybean plant”) which Monsanto had invented and patented.
The Court thus provided an answer to the Rechtbank's-Gravenhage (Court of The Hague, Netherlands), before which Monsanto brought proceedings, on the scope of the legal protection offered by Directive 98/44/EC on the legal protection of biotechnological inventions. In particular, the Dutch court asked whether the mere presence of the DNA sequence protected by a European patent is sufficient to constitute infringement of Monsanto's patent when the soy meal is marketed in the European Union. The Court observed that the directive makes the protection conferred by a European patent subject to the condition that the genetic information contained in the patented product or constituting that product performs its function in that very product. The DNA sequence patented by Monsanto is put into the DNA of the soybean plant (“RR soybean plant”) to protect it against a herbicide; it is found in a residual state only in the soy meal - a product that has undergone several treatment processes - and has, therefore, ceased to perform its principal function of protecting the plant. As a result, the protection conferred on European patents is not available and cannot be granted on the ground that the genetic information contained in the soy meal could possibly perform its function once again in another plant. For that to be so, it would have to be introduced into that other plant for protection under a European patent to be conferred. Furthermore, the Court states that the directive precludes a national rule from granting absolute protection to a patented DNA sequence as such, regardless of whether it performs its function in the material containing it. (F.G./transl.rt)