Official Journal of the European Union

C 234/7

(Case C-428/08) (<span class="super">1</span>)

(Industrial and commercial property - Legal protection of biotechnological inventions - Directive 98/44/EC - Article 9 - Patent protecting a product containing or consisting of genetic information - Material incorporating the product - Protection - Conditions)

2010/C 234/10

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicant: Monsanto Technology LLC

Defendants: Cefetra BV, Cefetra Feed Service BV, Cefetra Futures BV, Alfred C. Toepfer International GmbH

Intervener in support of the defendants: Argentine State

Re:

Reference for a preliminary ruling — Rechtbank ’s-Gravenhage — Interpretation of Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13) — Scope of the protection conferred by the patent — Product (a DNA sequence) forming part of a material (soy meal) imported into the European Union — Absolute protection conferred on the DNA sequence by national legislation — Patent granted before the Directive was adopted — Articles 27 and 30 of the TRIPS Agreement

Operative part of the judgment

Article 9 of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions is to be interpreted as not conferring patent right protection in circumstances such as those of the case in the main proceedings, in which the patented product is contained in the soy meal, where it does not perform the function for which it is patented, but did perform that function previously in the soy plant, of which the meal is a processed product, or would possibly again be able to perform that function after it had been extracted from the soy meal and inserted into the cell of a living organism.

Article 9 of the Directive effects an exhaustive harmonisation of the protection it confers, with the result that it precludes the national patent legislation from offering absolute protection to the patented product as such, regardless of whether it performs its function in the material containing it.

Article 9 of the Directive precludes the holder of a patent issued prior to the adoption of that directive from relying on the absolute protection for the patented product accorded to it under the national legislation then applicable.

Articles 27 and 30 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, constituting Annex 1C to the Agreement establishing the World Trade Organisation (WTO), signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) do not affect the interpretation given of Article 9 of the Directive.

(<span class="super">1</span>) OJ C 313, 06.12.2008.