Monsanto holds a patent in the EU on a genetic sequence which makes the soybean plant resident to the herbicide glyphosate, used by farmers to kill off weeds without harming their soy crops. It does not hold a parallel patent for the technology, known as Roundup Ready, in Argentina however, which is a major soy grower.
In 2005 and 2006 soymeal imported from Argentina to The Netherlands was found to contain traces of Monsanto’s DNA, which indicated that the soymeal had been produced using the Roundup Ready variety.
Monsanto launched a lawsuit at the Rechtbank’s Gravenhage in The Hague, which subsequently referred the question to the European Court of Justice as to whether the DNA sequence’s presence constituted a patent infringement when marketed in the EU.
In its ruling this week, the ECJ said that under the Biotechnology Directive, protection under a European patent is subject to the genetic information actually performing its function. Given that the DNA for Roundup Ready soy performed its function when the crop was grown and is inactive at the time of import, it deemed Monsanto’s claim invalid.
The only way to reactivate the DNA sequence would be to insert it into another plant.
"This will affect all inventions where genetically active material is used as a method or product," patent lawyer Arnout Gieske of Amsterdam-based firm Van Diepen Van der Kroef.is quoted as saying by the Wall Street Journal.
The implication could be increased exports to the EU of biotech products from developing countries which have weaker patent laws.
According to Monsanto, around 95 per cent of soybeans grown in Argentina have the Roundup Ready trait – and the company has been thwarted it its attempts to have producers pay for the use of their technology.
“Monsanto simply wanted to be paid for the use of our technology,” the company said in a statement. “We would have preferred a system where payment for use would occur in Argentina when growers use the technology. Due to a change in Argentine patent law after the introduction of Roundup Ready soybeans, however, Monsanto’s patent was disallowed and our ability to collect for the use of our technology was compromised.”
Since this was not possible, it sought other ways to gain from the use of the technology in Argentina, and patent protection in Europe appeared a good option.
In fact, it had already settled its dispute with importers Cefetra and Alfred C. Toepfer International under the original case in The Hague in June this year.
For its part, it does not believe the ECJ decision will have a big impact.
“The ECJ decision is very limited and will have no impact on Monsanto’s global Roundup Ready soybean business. The applicability of the Directive to whole soybeans containing Monsanto's Roundup Ready trait, where the gene clearly maintains its functionality, was not at issue. And because the dispute between the parties had already been settled, the ECJ decision will have no effect on the case between these parties at the District Court of the Hague. “