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By Naturaleza De Derechos, 20 August 2021 | Source

Bayer-Monsanto dropped the appeal of the patent claim for a genetic sequence. This is the second rejection – which now has a firm sentence – of the attempt to privatize seeds. Only one case remains to be decided.

▪ The company Bayer Monsanto withdrew its appeal against the judgment that rejected the lawsuit filed by the company in which it claims patent rights regarding seeds.

▪ This is a legal claim initiated in early 2016 by Monsanto (a firm absorbed by the Bayer corporation in 2017) against the National Institute of Industrial Property (INPI), in order to be granted a patent application for what it considers an invention that refers – according to the agribusiness corporation – to a novel artificial DNA sequence that encodes a protein tolerant to the herbicide glyphosate and its use to prevent gene silencing in plants.

▪ The case is pending before the Federal Civil and Commercial Court No. 7 of the City of Buenos Aires and is part of the triad of legal actions for patent rights over transgenic seeds focused on the claim of property rights over genetic sequences, initiated and activated by the firms Monsanto and Bayer (now unified in Bayer) as of 2016, following the judgment of Chamber III of the Civil and Commercial Court of the City of Buenos Aires, which in November 2015 rejected Monsanto’s central claim in which it claimed the patent on a double-stranded recombinant DNA molecule that gives plants tolerance to the herbicide glyphosate and plant cells with the insertion of such molecule (the plant itself).

▪ With the withdrawal of Bayer Monsanto, the judicial sentence issued by the magistrate Dr. Javier Pico Terrero, who went in depth in his rejection of Monsanto/Bayer’s request, closing the historical claim of the agribusiness corporations on the patent rights on seeds, following the line of argument of the decision of Chamber III of the Federal Civil and Commercial Chamber, became final.

In this sense, the Judge had pointed out in the judgment – now final – that the plaintiff’s claim underlies the idea that any technical contribution he makes in the field of biotechnology and which has an industrial application is patentable, but such an idea is not compatible with our LP because it implies equating inventive activity to mere innovation (Mathély, Paul, Le droit europé en des brevets d’invention, Paris, 1978, Journal des Notaires, pp.120 to 122, in particular, p. 121).

The judge then adds that, on the other hand, Monsanto/Bayer’s argument leads to disregard the problem of assessing the inventiveness of this type of contribution, in which there is a modification of matter already existing in nature that does not constitute any human creation whatsoever.

Thirdly – he points out – it is important to overlook the fact that the development of biotechnological research is usually favored by discoveries and improvements that do not reach the level of an invention. In this regard, there is a certain consensus in conceiving technology as a “non-rival public good” that offers innovations of two kinds: radical and incremental (Correa, Carlos, Propiedad intelectual e innovación. La excepción de experimentación, ED t.171-850).

The former, also called “major”, are discontinuous events resulting from deliberate research and development efforts.

On the other hand, the latter occur in a more or less continuous manner in any industrial activity and, more often than not, are the consequence of the gradual improvement of the original product suggested by engineers involved in the production process (Freeman, Christopher, El reto de la innovación, Caracas, 1987, Editorial Galac, pp.78-79, quoted by Correa, C. in the article referred to, p.851; conf. Chamber, III, “Monsanto Technology LLC c/ Instituto Nacional de la Propiedad Industrial s/ denegatoria de patente” Expte.Nº 8.044/07 del 26.11.2015).

Incremental innovation is based on the accumulated stock of knowledge and on the routine exploration of existing technologies, which makes it difficult to appreciate the creative aspect that the interested party claims of it (conf. Cám. Nac. Civ. y Com. Fed. Sala, III, causa “Monsanto Technology LLC c/ Instituto Nacional de la Propiedad Industrial”, aforementioned), as it happens in the present case.

In this way, the magistrate sealed with legal forcefulness his judicial decision, as of today firm after the withdrawal of Bayer Monsanto.


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