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
20 Pages Posted: 10 Nov 2011 Last revised: 10 Nov 2012
Date Written: August 1, 2011
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
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