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A Special Rule for Compound Protection for DNA Sequences - Impact of the ECJ 'Monsanto' Decision on Patent Practice

Journal of the Patent and Trademark Society, Vol. 93, p. 189, 2011

University of Washington School of Law Research Paper No. 2011-18

20 Pages Posted: 10 Nov 2011 Last revised: 10 Nov 2012

Jan B. Krauss

University of Washington School of Law

Toshiko Takenaka

University of Washington - School of Law

Date Written: August 1, 2011

Abstract

In Monsanto v. Cefetra, the European Court of Justice narrowly interpreted Article 9 of EU Biotech Directive and adopted a “function-limited” or “purpose-bound” protection for DNA sequence patents although the asserted claims are directed to an isolated DNA sequence, i.e., a compound without any limitation in view of its function or purpose. This paper argues that such restrictive interpretation was not only unnecessary but also conflicts with the principle of claim interpretation provided in European Patent Convention Article 69, which will lead to a lot of uncertainty in the protection scope and patentability of DNA sequence patents. It also discusses impacts of Monsanto on claim drafting and examination practice at the European Patent Office.

Keywords: DNA, patents, biotechnology

Suggested Citation

Krauss, Jan B. and Takenaka, Toshiko, A Special Rule for Compound Protection for DNA Sequences - Impact of the ECJ 'Monsanto' Decision on Patent Practice (August 1, 2011). Journal of the Patent and Trademark Society, Vol. 93, p. 189, 2011; University of Washington School of Law Research Paper No. 2011-18. Available at SSRN: https://ssrn.com/abstract=1957409

Jan B. Krauss

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: http://www.law.washington.edu/

Toshiko Takenaka (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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