'Round up' on the scope of DNA patents - Monsanto Technology LLC v Cefetra BV and Others

In Monsanto Technology LLC v Cefetra BV and Others, Advocate General Paolo Mengozzi's recommendations to the European Court of Justice (ECJ) are that (a) patent protection for DNA sequences should be limited to situations in which the patented sequence is currently expressing its patented function, and (b) protection should only extend to the specific function identified in the patent.

If the Advocate General's opinion is accepted by the ECJ, the scope of DNA patent protection will be substantially restricted in certain cases. For Monsanto this will mean that its patented DNA sequence for plant resistance to "Round Up" herbicide will not be infringed by Cefetra's importation of soy meal produced from plants containing the sequence. Although the soy meal was produced from genetically modified soya plants expressing the patented DNA sequence, the sequence does not perform its patented function (to provide herbicide resistance) in the soy meal, so no infringement will lie. Our experts have produced an in depth analysis of this controversial opinion.