EPLAW Patent Blog

EU - Brüstle v. Greenpeace / Opinion A-G

Brüstle v. Greenpeace, CJEU, Opinion of the Advocate General, 10 March 2011, Case C-34/10

According to Advocate General M. Yves Bot, totipotent cells carrying within them the capacity to evolve into a complete human being must be legally classified as human embryos and must therefore be excluded from patentability.

Nor can a procedure using other embryonic stem cells, known as pluripotent cells, be patented where it first requires the destruction or modification of the embryo.

Read the opinion (available in various languages) here.

Read the press release (in English) here.

Read our previous post here.

EU - CJEU Opinion on EU Patents Court

UPDATE - Today, the CJEU rendered the opinion on the EU Patents Court.

The Court states that the agreement is not compatible with EU law.

Read the opinion in English here.
Read the opinion in French here.

Read the press release in Dutch here.
Read the press release in English here.

Read the Commission press release (in English) here.

More information can also be found on the EPLAW website.

EU - Opinion on the compatibility of the proposed European Patent Court System with European Treaty Law

Request of the Council of the European Union for an Opinion on the compatibility of the proposed European Patent Court System with European Treaty Law, Court of Justice of the European Union, Opinion of the A-G, No. 1/09, 2 July 2010, with thanks to Pierre Véron, Véron & Associés for sending in the translation

* Now including the translation in English*

Conclusion: not compatible

"En son état actuel, l'accord envisagé créan un système unifié de règlement des litiges en matière de brevets est incompatible avec les traités."

Read the opinion of the A-G (in French) here.
Read the opinion of the A-G (in English) here.

EU - Final petition of the Advocate-General / Jodosulfuron

Final petition of the Advocate-General, Case C-229/09, Jodosulfuron, June 17, 2010, by dr. Christopher Brückner, Bardehle & Pagenberg

The German Patent Court has asked the Court of Justice of the European Union on the interpretation of Art. 3(1)(b) of Council Regulation 1610/96 regarding the creation of a supplementary protection certificate for plant protection products. This reference is Case C- 229/09 Rechtsanwaltssozietät Lovells vs. Bayer CropScience AG (jodosulfuron). The main question in this case is, whether an SPC can be granted already from receipt of a preliminary marketing approval in the sense of Article 8 paragraph 1 of Guideline 91/414/EWG, or only from receipt of a final approval in the sense of Article 4 of same Guideline.

Read the entire contribution here.
Read the previous post on this case here.

EU - The Court of Justice limits DNA protection to performing its function

The Court of Justice limits DNA protection to performing its function, by Paul England, Simmons & Simmons

The decision of the Court of Justice
In its first decision on the infringement provisions of the Biotechnology Directive, the Court of Justice (CJ) (formerly the European Court of Justice) gave its judgment in the case of Monsanto Technology v Cefetra on 6th July 2010. It has followed the earlier Opinion of Advocate General Mengozzi (9 March 2010) by holding that Article 9 of Directive 98/44/EC does not confer protection on a patented DNA sequence when it is contained in soy meal, where it does not perform the function for which it was patented. This is regardless of the fact that it did perform that function previously in the soy plant, of which the meal is a processed product, and that the DNA could again perform its function after extraction from the soy meal and insertion into the cell of a living organism.

ECJ - Monsanto v. Cefetra and others

Monsanto Technology LLC v. Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH, Intervener in support of the defendant: Argentine State, Judgment of the Court (Grand Chamber), 6 July 2010, Case C 428/08, with thanks to John Allen and Paul van Dongen, NautaDutilh

On those grounds, the Court (Grand Chamber) hereby rules:

1.   Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism.

2.   Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it.

ECJ - Can a supplementary protection certificate based on a provisional marketing authorisation be granted?

Opinion of the Advocate General in Jodosulfuron published 17 June 2010 (Case 229/09, Lovells v. Bayer CropScience AG, referred by the German Federal Patent Court), with thanks to Christopher Brückner, Bardehle & Pagenberg for the head note and summary
 
This case concerns the interpretation of Article 3 (1) b of Council Regulation (EC) 1610/96 regarding the creation of a supplementary protection certificate for plant protection products based on a provisional marketing authorisation according to Article 8 (1) of Directive 91/414/EEC.

The following question has been submitted to the European Court of Justice:

"Is the existence of an authorisation to place the product on the market in accordance with Art. 4 of Directive 91/414/EEC exclusively decisive for the application of Art. 3(1) b of the Regulation or can a certificate also be granted based on an authorisation to place the product on the market in accordance with Art. 8(1) of Directive 91/414/EEC."

The opinion of Advocate General can be summarised as follows:

 I. Article 3 (1)(b) of Regulation (EC) No. 1610/96 of the European Parliament and of the Council of 23 July 1996 concerning the creation of a supplementary protection certificate for plant protection products has to be interpreted to the effect that an SPC for a plant protection product cannot be granted based on a marketing authorisation according to Art. 8(1) of Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market.

II. Reference to this interpretation of Article 3(1)(b) of Regulation (EC) No. 1610/96 cannot be made in a request for nullification of a plant protection product SPC that was filed before enactment of the present decision.

Read the opinion (only in German) here.

The opinion in several other languages (soon also in English) can be found here.

EU - ECJ will decide on European Patent Court System

ECJ will decide on European Patent Court System, EPLAW Information, prepared by Winfried Tilmann, Hogan Lovells

"On May 18, the European Court of Justice (ECJ) will hold an oral hearing on the request of the Council of the European Union for an Opinion on the compatibility of the proposed European Patent Court System with European Treaty Law. Art. 300 (6) TEC(Nizza) and Art. 218 (11) TFEU(Lisbon) give to the Council the right to obtain the opinion of the Court as to whether an agreement envisaged is compatible with the European Treaties. The Council, in June 2009, had requested such an opinion regarding a draft-agreement on a patent court for European and Community Patents, for which he had reached Conclusions on December 4, 2009."

Read the complete message here.

EU - Comments on the opinion of Advocate General Mengozzi in case C-428/08 (Monsanto Technology LLC v. Cefetra BV and others)

Comments on the opinion of Advocate General Mengozzi in case C-428/08 (Monsanto Technology LLC v. Cefetra BV and others), by Willem Hoyng and Frank Eijsvogels, Howrey

On 9 December 2010, Advocate General Mengozzi delivered his opinion in the matter of Monsanto v. Cefetra c.s.. In this paper we will first give an overview of the relevant facts. Subsequently we will make a few comments on this opinion whereby we focus on the proposed answers to the first two questions that the District Court of The Hague referred to the European Court of Justice (ECJ). 

Read the entire comment here.

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.