"Legal context: In the first litigation case regarding the interpretation of the Biopatent Directive 98/44/EC, the European Court of Justice is asked to clarify whether a DNA sequence is entitled to patent protection as a compound as such, or only under circumstances where the DNA performs its function.
Key points: Advocate General Mengozzi issued an opinion concluding, ‘"that the protection for a patent relating to a DNA sequence is limited to the situations in which the genetic information is currently performing the functions described in the patent’", thereby arguing for both a purpose-bound and time-limited scope of protection. In his view, the Directive constitutes an exhaustive body of rules and precludes national legislation from conferring wider protection.If you are not a subscriber to JIPLP, you can still purchase this article by itself from Oxford University Press by clicking here and scrolling down to "Purchase short-term access".
This interpretation finds no base in the legislative history of the Directive, which was intended to extent but not to limit protection for biotech inventions.
Practical significance: A ruling following the opinion would have severe consequences for EU biotechnology patent holder. Not only isolated DNA will become unprotected, a patentee would also lose rights against the importation of harvested goods produced outside the EU without his authorization".