# C_2008313EN.01001602.xml

| 6.12.2008 | EN | Official Journal of the European Union | C 313/16 |
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6.12.2008

EN

Official Journal of the European Union

C 313/16

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Reference for a preliminary ruling from the Rechtbank 's-Gravenhage (Netherlands) lodged on 29 September 2008 — Monsanto Technology LLC v 1. Cefetra BV, 2. Cefetra Feed Service BV, 3. Cefetra Futures BV, and 4. State of Argentina and Miguel Santiago Campos, acting in his capacity as Secretary of State for Agriculture, Animal Husbandry, Fisheries and Food, and Monsanto Technology LLC v 1. Vopak Agencies Rotterdam BV, and 2. Alfred C. Toepfer International GmbH

(Case C-428/08)

(2008/C 313/24)

Language of the case: Dutch

Referring court

Rechtbank 's-Gravenhage

Parties to the main proceedings

Applicant: Monsanto Technology LLC

Applicant:

Defendants:

| 1. | Cefetra BV, |
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1.

Cefetra BV,

| 2. | Cefetra Feed Service BV, |
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2.

Cefetra Feed Service BV,

| 3. | Cefetra Futures BV, |
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3.

Cefetra Futures BV,

| 4. | State of Argentina and Miguel Santiago Campos, acting in his capacity as Secretary of State for Agriculture, Animal Husbandry, Fisheries and Food |
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4.

State of Argentina and Miguel Santiago Campos, acting in his capacity as Secretary of State for Agriculture, Animal Husbandry, Fisheries and Food

Applicant: Monsanto Technology LLC

Applicant:

Defendants:

| 1. | Vopak Agencies Rotterdam BV, |
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1.

Vopak Agencies Rotterdam BV,

| 2. | Alfred C. Toepfer International GmbH |
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2.

Alfred C. Toepfer International GmbH

Questions referred

| 1. | Must Article 9 of Directive 98/44/EC (1) of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions be interpreted as meaning that the protection provided under that article can be invoked even in a situation such as that in the present proceedings, in which the product (the DNA sequence) forms part of a material imported into the European Union (soy meal) and does not perform its function at the time of the alleged infringement, but has indeed performed its function (in the soy plant) or would possibly again be able to perform its function after it has been isolated from that material and inserted into the cell of an organism? |
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1.

Must Article 9 of Directive 98/44/EC (1) of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions be interpreted as meaning that the protection provided under that article can be invoked even in a situation such as that in the present proceedings, in which the product (the DNA sequence) forms part of a material imported into the European Union (soy meal) and does not perform its function at the time of the alleged infringement, but has indeed performed its function (in the soy plant) or would possibly again be able to perform its function after it has been isolated from that material and inserted into the cell of an organism?

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| 2. | Proceeding on the basis that the DNA sequence described in claim 6 of patent no EP 0 546 090 is present in the soy meal imported into the Community by Cefetra and ACTI, and that the DNA is incorporated in the soy meal for the purposes of Article 9 of Directive 98/44 and that it does not perform its function therein:
  does the protection of a patent on biological material as provided for by Directive 98/44, in particular Article 9, preclude the national patent legislation from offering (in parallel) absolute protection to the product (the DNA) as such, regardless of whether that DNA performs its function, and must the protection as provided under Article 9 of the Directive therefore be deemed to be exhaustive in the situation referred to in that article, in which the product consists of genetic information or contains such information, and the product is incorporated in material which contains the genetic information? |
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2.

Proceeding on the basis that the DNA sequence described in claim 6 of patent no EP 0 546 090 is present in the soy meal imported into the Community by Cefetra and ACTI, and that the DNA is incorporated in the soy meal for the purposes of Article 9 of Directive 98/44 and that it does not perform its function therein:

does the protection of a patent on biological material as provided for by Directive 98/44, in particular Article 9, preclude the national patent legislation from offering (in parallel) absolute protection to the product (the DNA) as such, regardless of whether that DNA performs its function, and must the protection as provided under Article 9 of the Directive therefore be deemed to be exhaustive in the situation referred to in that article, in which the product consists of genetic information or contains such information, and the product is incorporated in material which contains the genetic information?

| 3. | Does it make any difference, for the purpose of answering the previous question, that patent no EP 0 546 090 was applied for and granted (on 19 June 1996) prior to the adoption of Directive 98/44 and that such absolute product protection was granted under national patent legislation prior to the adoption of that directive? |
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3.

Does it make any difference, for the purpose of answering the previous question, that patent no EP 0 546 090 was applied for and granted (on 19 June 1996) prior to the adoption of Directive 98/44 and that such absolute product protection was granted under national patent legislation prior to the adoption of that directive?

| 4. | Is it possible, in answering the previous questions, to take into consideration the TRIPS Agreement, in particular Articles 27 and 30 thereof? |
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4.

Is it possible, in answering the previous questions, to take into consideration the TRIPS Agreement, in particular Articles 27 and 30 thereof?

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(1)  OJ 1998 L 213, p. 13.

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