Monsanto v Cefetra Set the Boundary of Protection for DNA Sequences with their Function: Monsanto's Different Experiences in Europe and North America

Abstract:

In Monsanto v. Cefetra, the highest court of the European Union considered the extent of protection for genetically modified DNA sequences conferred under art. 9 of Directive 98/44/EC (“the Biotech Directive”). In this important decision for the biotechnology industry, the Court confirmed “purpose-bound protection” for DNA sequences, which sets a boundary for protection on the basis of their function. This decision is expected to have a significant impact on patent protection for DNA sequences in Europe. Although full product protection was excluded, the decision confirms patentability of purpose-bound DNA sequences, and provides a basis for blocking excessive enforcement of DNA patents. Monsanto’s patented herbicide-resistance technology introduces modified DNA sequences into plants to impart herbicide resistance. Monsanto v. Cefetra dealt with importation into Europe of products derived from herbicide-resistant plants grown in a country where Monsanto failed to obtain a patent. In contrast, related cases in North America dealt with use, by farmers, of seeds saved from a previous season’s herbicide-resistant crops. In the latter, function was not considered as a factor in the scope of protection of DNA sequences. While enforcement issues considered in Europe differed from those in North America, and purpose-bound protection is a European doctrine, I argue that the doctrine may be applicable to future cases in Canada.