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Does Europe v. Monsanto = Myriad?

The European Court of Justice recently ruled against Monsanto in its bid to stop an Argentinean company, Cetera, from selling so-called "Roundup Ready" soybeans, reports Genomics Law Report's John Conley. Cetera tried to take advantage of the fact that Monsanto doesn't hold a patent for the beans in Argentina, and also tried to export the beans to Holland. "The soy meal in question was seized by Dutch customs authorities. It contains 'dead' versions of the DNA sequence covered by Monsanto's European patent," Conley writes. "Monsanto sued for Cetera for violating a provision of Dutch patent law that forbids importing a patented product — in this case, the DNA sequence — into the Netherlands." But the ECJ disagreed, saying the Dutch law is countermanded by the EU Biotechnology Directive, which states in part that genetic material can only be protected when it's doing its job. Since the DNA sequences in question were "dead," Conley says, they weren't protected under the Directive. The connection to the Myriad case, he adds, is that in his decision against Myriad's patent, Judge Sweet reasoned that "even though an isolated gene might be chemically distinct from its naturally occurring counterpart, its information-carrying capacity was the same." Similarly, Conley suggests, the ECJ ignored the fact that "live" and "dead" DNA sequences are the same chemically, and focused on their functionality. The US courts aren't bound by the ECJ decision in any way, Conley concludes, but "it is a connection that may merit some additional development moving forward."

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