European Court gives narrow protection to DNA-based biotech patents


This article reviews the implications of the first-ever judgment by the Court of Justice (the renamed European Court of Justice) on the extent of protection that European patents should give to biotech patents. It held that Monsanto cannot prevent soy meal being sold in the EU that contains, in a residual state, a DNA sequence patented by it.

 The Court has given a narrow interpretation to the Biotechnology Directive. It roundly rejected Monsanto’s argument that it should be entitled to the broadest possible protection to its Roundup Ready patent (i.e. to its DNA sequence as such).

 It held instead that the protection given to DNA sequence patents should be ‘purpose-bound’. No protection should be given to patented DNA sequences where they are not performing the specific function for which they were patented (in the case of Monsanto’s Roundup Ready soya, this function is protecting the plant against the effects of a herbicide).

 This result severely curtails the protection of DNA sequence patents, as it means that no derivative or processed products will be protected if they fall outside the scope of what the patent expressly states the function of the DNA sequence to be.

 The result of this judgment is that DNA patents will not be given a disproportionate and overly wide level of protection. Patent owners will not be able to lay claim over an unspecified number of derivative products coming under their control. Patent owners must now pay close attention in future patent applications to how they specify the function of their DNA sequences.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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