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PAT E N T S
Monsanto Technology LLC v. Cargill: a matter of construction
http://www.nature.com/naturebiotechnology
Simon Cohen & Gareth MorganFor the first time, a genetically modified plant patent is litigated in the United Kingdoms High Court.
On 10 October 2007, the United Kingdom
Patents Court handed down its decision in
Monsanto Technology LLC v. Cargill1. The case was something of a landmark, representing the first genetically modified plant patent litigated in the UK High Court and one of the first in Europe. It is also an important case because of the Courts finding on the construction of the DNA-based claims in the Monsanto patent, which could have broader application than just this case.
Monsanto sued Cargill for importing into the UK soya meal produced in Argentina and alleged to be derived from soya beans modified to contain a gene conferring resistance to a herbicide called glyphosate (Roundup). Cargill counterclaimed for invalidity of the Monsanto patent in suit and also contested infringement. The judge found the patent valid as amended by Monsanto2 but not infringed by Cargills importation of the soya meal. In this article we will focus on the decision of the Court in relation to the construction, or meaning, of Monsantos patent, the consequences of this construction for the infringement action brought by Monsanto, and the implications for industries using products derived from genetically modified organisms.
The patent in issue was EP(UK) 0,546,090 (the 090 Patent). This patent claimed, among other things, DNA sequences capable, upon expression, of producing a new class of enzymes3 that, when transferred into and expressed in plants, conferred resistance to glyphosate. These enzymes are known as 5-enolpyruvylshikimate-3-phosphate syn-
thases, or EPSPSs. The enzyme plays an important role in the biosynthetic pathway for the production of aromatic amino acids and is found only in plants and microbes (higher animals lack this capability). The herbicide glyphosate inhibits this enzyme, and the new class of enzymes Monsanto claimed to have invented were able to confer resistance through an ability to compensate for the host plant cell EPSPS activity under conditions in which the host EPSPS was inhibited by glyphosate. The claimed class of EPSPS enzymes (termed Class II EPSPS enzymes) possessed lower affinities for the glyphosate inhibitor molecule than the host...