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The Genetics of Patent Law

Written by Corinne Day on 25 October 2007

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A recent case in the High Court has determined how far patent claims should be construed. Monsanto Technology LLC v Cargill International SA & Another (2007) highlights how the Courts construe patent claims covering genetic material and genetic sequences.

The case concerned a patent (held by Monsanto) consisting of a particular type of enzyme ('glyphosate tolerant'), which, if expressed in a plant, confer resistance to the herbicide. Thus, weeds could be easily killed but the plant would remain healthy. Monsanto claimed that Cargill were infringing their patent by buying Soya beans (which had been grown from seed carrying the gene for the particular enzyme in the patent) for the manufacture of meals for animals where the soya bean contained the particular type of enzyme in Monstanto's patent. The question for the Court was whether, by manufacturing this meal, Cargill had infringed the patent covering the gene and the process for creating the genetically modified Soya bean.

Monsanto alleged that the meal contained at least genomic fragments of the patented gene and thus the patent had been infringed. Cargill argued that the patent was invalid on the grounds that it was not inventive and was obvious. Cargill did however admit that the discovery of the enzyme was inventive. The Court subsequently held the patent valid, although held that it had not been infringed. The Court had to limit the scope of the patent which Monsanto claimed it was entitled to. The Court felt that they could not award a monopoly to Monsanto over every possible product containing the particular enzyme.

The case highlights how important it is that patent claims are drafted so that it is easy to determine whether an infringement of the patent has occurred.

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