According to the Advocate General Article 9 of the Biotechnology Directive does not limit the scope of protection of patents for biotechnology inventions. Nonetheless protection for DNA sequences as such is excluded.
In its decision rendered on 19 March 2008 the District Court of The Hague referred questions to the European Court of Justice on the interpretation of article 9 of Directive 98/44/EC 0f the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (“Biotechnology Directive”). In particular the Dutch court wished to know whether article 9 of the Biotechnology Directive should be interpreted as extending the rights conferred by a patent covering a biotechnological invention, or, on the contrary, whether it should be interpreted to limit the proprietor’s right to prevent the exploitation of material containing the patented product (DNA sequence), on the condition that such product still performs its function. The Advocate General in his opinion comes to the conclusion that it is irrefutable that article 9 of the Biotechnology Directive is a rule for the extension of patent protection. However, in his opinion the system put in place by the Biotechnology Directive excludes protection for DNA sequences as such. Such protection is limited “to the situations in which the genetic information is currently performing the functions described in the patent.” But how does this relate to the obligations under the European Patent Convention (EPC)?