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

24 Pages Posted: 26 Apr 2013 Last revised: 16 Jul 2014

Marcelo Dias Varella

University Center of Brasilia; University of California, Berkeley - School of Law

Maria Edelvacy Marinho

University Center of Brasilia

Date Written: April 24, 2013

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

Suggested Citation

Varella, Marcelo Dias and Marinho, Maria Edelvacy, Contesting Monsanto's Patents on Life: Transnational Juridical Dialogue and the Influence of the European Court of Justice on Soybean Exporting Countries (April 24, 2013). Tulne Journal of Technology & Intellectual Property, Vol. 16, 2013. Available at SSRN: https://ssrn.com/abstract=2256097 or http://dx.doi.org/10.2139/ssrn.2256097

Marcelo Dias Varella (Contact Author)

University Center of Brasilia ( email )

Programa de Mestrado e Doutorado em Direito
SEPN 707/907, Bloco III, Terreo, Asa Norte
Brasilia, DF 71607-050
Brazil

HOME PAGE: http://www.marcelodvarella.org

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

Maria Edelvacy Marinho

University Center of Brasilia ( email )

SHIN QI 02, conjunto 02, casa 10
Brasilia, 71510-020
Brazil

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