The ECJ's Judgment
The first question was about the interpretation of Article 9. Did it confer patent protection where the DNA was present and had performed its function or could do so again if isolated and introduced into another organism? Article 9 uses the present tense; the DNA “performs its function”. It also extends only to “material…in which the [DNA] is contained”. This excludes past and future performance of the DNA.
The ECJ also addressed Monsanto’s argument that the protection available was for the DNA molecule as such. It held that this was not the case and that protection of the DNA molecule is purpose-bound. In doing so, it relied upon the recitals and provisions of the directive that require the function of the DNA to be disclosed in the patent.
To decide otherwise in respect of either of these points would be to deprive Article 9 of any effect. It is true in all situations that the DNA has either performed its function or could perform its function again. Further, protection for the DNA molecule as such would mean that extending protection to the material containing it would be unnecessary.
The second and third questions were: did Article 9 preclude a Member State from offering absolute protection to DNA molecules; and did the directive apply to all patents or only to patents applied for after the directive was adopted? In answer to both of these questions, the ECJ considered the stated purpose of the directive: to harmonize protection throughout the EU and to encourage investment in biotechnology. In order to give effect to this purpose, Article 9 of the directive must be exhaustive and must apply to all patents.