(CN) - The owner of a patented strain of herbicide-resistant soy can't collect royalties on soy meal imported from Argentina and used for animal feed, a European Court of Justice adviser ruled.
Though the soy meal contains residue of Monsanto's patented gene, it's no longer being used for its patented purpose of resisting pesticides.
Monsanto developed glyphosate, a broad-spectrum pesticide marketed under the name Roundup, along with Roundup-ready crops, which are genetically engineered to resist glyphosate.
Advocate General Paolo Mengozzi, in response to a request for clarification from a Dutch court, advised the high court that a European Union biotech directive distinguishes between simple discovery and invention of genetic code.
DNA that simply exists isn't patentable under the EU directive, Mengozzi stated, because this would allow an "unspecified number of derivative products" to fall under control of the patent-holder. For a patent to be enforceable, the genetic information must be "performing the functions described in the patent," Mengozzi said.
The ruling shot down Monsanto's demand for royalties from Dutch importers of genetically modified soybean meal. Although the soy meal, used for animal feed, contains "residue" of the Roundup-ready gene, after harvest the code is no longer active in its purpose of resisting the pesticide, Mengozzi ruled.
The EU biotech directive is exhaustive, precluding national legislation and the Agreement on Trade-Related Aspects of Intellectual Property Rights, Mengozzi concluded. The Luxembourg-based Court of Justice is likely to rule based on his advice.
Reuters reports that the 27-nation European Union is the greatest importer of Argentinean soy meal, to the tune of $4.1 billion per year.
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