Monsanto v Cefetra Set the Boundary of Protection for DNA Sequences with their Function: Monsanto's Different Experiences in Europe and North America
The Canadian Intellectual Property Review (CIPR) is a double-blind peer reviewed journal. It is sent to over 1,800 IPIC members at no cost and can be purchased by non-members for a fee. If you would like to browse the articles included in the CIPR, please consult our database below.
Any author, member or non-member can submit an article for consideration in the CIPR. The CIPR Editorial Board welcomes both short pieces (2,000 to 5,000 words) that may be included in the Notes section of the issue or longer, more in-depth articles. The maximum length of articles, including references, is 20,000 words. Articles may be submitted in French or English. Each article should be accompanied by a 150-word abstract.
All submissions undergo a double-blind review process: the reviewers are not given the authors' identities and the identities of the reviewers are shielded from the authors. Additionally, articles submitted must be original and must not have been previously published elsewhere.
If you would like to submit an article for an upcoming issue of the CIPR please contact admin@ipic.ca.
Canadian Intellectual Property Review
Share
Monsanto v Cefetra Set the Boundary of Protection for DNA Sequences with their Function: Monsanto's Different Experiences in Europe and North America
Issue: Volume 27 no 2
Author(s): Shuji Sumi
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.
