Overview

The Advocate General of the Court of Justice (the renamed European Court of Justice) has published the first-ever opinion on the extent of protection that European patents should give to biotech patents.

This controversial opinion proposes that the full Court should give a narrow interpretation to the Biotechnology Directive which was implemented to harmonise EU laws on the patentability of biotech inventions. Although now implemented in all Member States, there are major differences in how the Directive has been implemented.

This is the first time the Court of Justice has been able to consider the scope of the protection of biotech inventions, particularly DNA sequence patents, in the ten years the Directive has been in force. This opinion is therefore significant for a number of reasons:
• The Advocate General recommended that traditional patent protection should not be applied to DNA sequence patents. The protection given by such DNA patents should instead be ‘purpose-bound’.
• Although formally non-binding, Advocate General opinions are given great weight by the full Court and are usually upheld.
• This opinion is therefore likely to determine how Member States should apply the Biotechnology Directive, what balance to strike between patentee’s rights and those of their competitors, and result in a more harmonised approach across the EU.