For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 6 July 2010

Monsanto: court makes a meal of soya ruling

Argentina may have been thrashed by the Germans in the World Cup, but its soymeal exporters have scored a notable victory on the not-so-inhospitable foreign soil of Luxembourg, following today's ruling of the Court of Justice of the European Union in Case C-428/08 Monsanto Technology LLC v Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH and, as intervener in support of the defendant, the Argentine State itself. The IPKat had rather stupidly assumed that, since Monsanto had withdrawn its complaint in the underlying proceedings (see jiplp weblog here) after getting the rough end of the Advocate General's Opinio (click here for the IPKat's take on this), the Court would quietly go back to doing whatever it does best when it isn't judging IP cases. But no, having gone to the trouble of doing its homework the Court wasn't going to miss the chance to get it marked.

In short Monsanto, the world’s biggest seed company, sought to rely on a European patent for its Roundup Ready soy beans as a means of preventing the importation into the European Union of soy meal from Argentina. The question at the heart of the dispute was whether the patent, for soy beans that are resistant to some herbicides (notably Roundup), extends to soy meal made from the patented seeds. Argentina, the world’s third-biggest soy bean exporter after Brazil and the US, is one of the few countries in which Monsanto had no patent coverage for its herbicide-resistant seeds.

In 2005-2006 Monsanto had a quantity of soy meal from Argentina impounded in Amsterdam harbour. Tests showed that the impounded product contained some of the patented seed traits, so Monsanto sued the importers for infringement. A Dutch court, hearing the dispute in 2008, sought the guidance of the Court of Justice. According to the Advocate General, protection for patents that cover genetic sequences was limited to situations in which the genetic information was actually performing the functions described, which it wasn't doing in the case of soy beans which had been turned into meal. Today the Court of Justice ruled as follows:

"1. Article 9 of Directive 98/44 ... on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances ... 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.

3. Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable.

4. Articles 27 and 30 of [TRIPS]... do not affect the interpretation given of Article 9 of the Directive".
The IPKat is fascinated to know what stratagems Monsanto will adopt next, given that this ruling cannot be appealed and is applicable across all 27 European Union Member States. Within its sector, Monsanto's actions will be carefully studied since not only that company but its competitors have looked to what is now held to be an improperly extended notion of patent protection for their income streams. The company is more IP-savvy than most and is bound to have Plan B, Plan C and Plan D lined up. Merpel says, it's easier to create a soy bean that's resistant to herbicides than a patent that's resistant to soy meal importers ...

Soy meal here
Why cats shouldn't have soy -- and particularly cheetahs -- here
Round up here

1 comment:

James Wagner said...

Hmmm win some loose some I guess.

Monsanto expanded the scope of patent protection for gene patents in Canada on their last trip to our Supreme Court. Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34, [2004] 1 S.C.R. 902

I suspect though that Monsanto would wish they had their success in the EU rather than CA given the relative market sizes.

Will this decision lead to countries with weaker patents, or weaker gene based patent protection developing specialization as 'generic crop' exporters?

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':