ECJ Considers Scope Of DNA Claims

The scope of patent claims directed to DNA molecules under EU Directive 98/44/EC (the Biotech Directive) is to be considered by the European Court of Justice. A referral has been made by the District Court of the Hague in the case of Monsanto vs Cefetra and the State of Argentina as to the meaning of Article 9 of the Directive. This specifies that the protection conferred by a patent for a product containing or consisting of genetic information extends to all material, in which the product is incorporated and in which the genetic information is contained and performs its function.

Monsanto brought an action in The Netherlands for infringement of their European patent EP 0546090. The patent covers an enzyme and DNA encoding it, which confers resistance to the herbicide glyphosate in plants in which the DNA is inserted. The defendant Cefetra imported into the Netherlands meal prepared from soya plants including the patented gene, which had been grown in Argentina where there is no patent. Monsanto were a