Contesting Monsanto's Patents on Life: Transnational Juridical Dialogue and the Influence of the European Court of Justice on Soybean Exporting Countries

Abstract

This is probably one of the most important cases in Intellectual Property Rights today, evolving around US$ 3 billion in damages. It is related to Monsanto patents on soybeans in Brazil and Argentina and its exports to European Union. Article 27, 3 (B) of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) allows states to exclude plants and animals as patentable objects. Both Brazil and Argentina prohibit patents on plants, yet for years Monsanto employed tactics for collecting royalties from producers of “Roundup Ready” (RR) soybean crops in the two countries. The company’s collection scheme exploited the assumption that royalties would be owed in the importing countries, where such patents are allowed. In 2009 this issue was indirectly addressed by the European Court of Justice (ECJ), which denied patent holders exclusive rights to products such as soy meal derived from a patented crop if they contain no significant traces of a patented gene. Although the court’s decision did not explicitly address the collection of royalties in the exporting countries, it nevertheless impacted agriculture in Brazil and Argentina, the largest soybean-exporting economies in the world. This paper discusses that impact, a clear case of an international “dialogue of judges,” and two related questions: Can patents in Europe affect the legal system in a South American country of export? And does the patent on RR soybeans also apply to products derived from or containing soybeans? The paper also shows how the ECJ’s decision directly influenced the Brazilian and Argentinian legal systems and, in doing so, changed the balance of power between national and international actors.

Keywords: Intellectual Property and Agriculture, Monsanto, Patent on genes, Dialogue of Judges, Brazil. Patents on Life

JEL Classification: K38