EU - Monsanto v Cefetra

Monsanto Technology LLC v. Cefetra BV and others, Opinion of Advocate General Mengozzi, Court of Justice of the EU, 9 March 2010, Case No. C-428/08, with thanks to John Allen and Paul van Dongen, NautaDutilh

Today, Advocate General Mengozzi of the Court of Justice of the EU has rendered his opinion in the much debated Monsanto v. Cefetra case. The press release states:

"After examining the wording and aims of the directive on the legal protection of biotechnological inventions, Advocate General Mengozzi maintains that the patented DNA is protected as such -that is, as a chemical substance- only where it performs the function for which it was patented. In his view, those are the only circumstances in which the protection also covers the 'material' in which the DNA sequence is contained.

"The Advocate General concludes, therefore, that the protection for a patent relating to a DNA sequence is limited to the situations in which the genetic information is currently performing the functions described in the patent. That holds true both as regards the protection of the genetic information as such and as regards the protection of the materials in which the genetic information is contained.

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"In his view also, Directive 98/44/EC constitutes an exhaustive body of rules governing the protection to be recognized in the European Union as accruing to a biotechnological invention and precludes national legislation from conferring protection which is wider. The aim of the directive is to promote the market and competition and to prevent existing legislative differences in that area from having a negative effect on trade within the European Union.

"The fact that a patent has been awarded before the entry into force of Directive 98/44/EC (30/07/1998) is irrelevant."

Read the entire press release (in English) here.

Read the opinion (in French) here.

Read the opinion (in Dutch) here. 

Read the opinion (in many other languages) here.