Van Diepen Van Der Kroef wins landmark patent case for the State of Argentina

Marco Gerritsen represented the State of Argentina in a landmark case on the scope of protection of biotechnological inventions. The case concerned the issue whether soy meal imported from Argentina infringes a patent of Monsanto, world leader in genetically modified seeds. Monsanto’s patent concerned a genetic modification of soy plants, causing plants to be resistant to herbicide glyphosate. Argentine’s total 2008 export of soy beans and derivatives valued $ 4.5 billion, thus making Argentina the third largest exporter worldwide.

On 6 July 2010 the European Court of Justice (case C-428-08) ruled in favour of Argentina. The court decided that Monsanto cannot prohibit the marketing of soy meal originating from Argentina that may contain genetic information that is patented in Europe. Soy meal is ‘dead’ material in which the genetic information has ceased to perform the function it performed in the initial material from which the material in question is derived. Thus, the European court held, although the soy meal contains the patented genetic information, importing and offering for sale the meal does not infringe upon Monsanto’s patent. Even if the information did perform its patented function previously, when the soy plants were still alive, or may possibly perform the function if extracted and inserted in another plant. This follows from legislation at the European level (Directive 98/44/EG) that prevails over national legislation.

Apart form Marco Gerritsen, Sander Verbeek and Arnout Gieske of the IP department of Van Diepen Van der Kroef lawyers in Amsterdam, contributed to the case.

Article in The Wall Street Journal