Jan B. Krauss and Toshiko Takenaka, A Special Rule for Compound Protection for DNA-Sequences Impact of the ECJ "Monsanto" Decision on Patent Practice, 93 J. Pat. & Trademark Off. Soc'y 189 (2011), https://digitalcommons.law.uw.edu/faculty-articles/352
Journal of the Patent and Trademark Office Society
gene patents, Monsanto v. Cefetra
This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.