Friday, June 26, 2009
Judicial Decision in Argentina Tackles the Interplay between Enforcing Patent Rights and Antitrust Law within the Dispute between Monsanto and the Argentine Government on the “GM soy-seed RR”
Posted by D. Daniel Sokol
Mariano Municoy (Moeller IP Advisors) explains how a Judicial Decision in Argentina Tackles the Interplay between Enforcing Patent Rights and Antitrust Law within the Dispute between Monsanto and the Argentine Government on the “GM soy-seed RR”.
ABSTRACT: The conjunction between intellectual property rights and antitrust law has recently become a very important issue worldwide and Latin America is not an exception. Therefore, the relevance of this case, which is the first judicial decision on the topic in Argentina, cannot be overrated.
On September 30, 2008 the Federal Court of Appeals for Civil and Commercial Matters located in the city of Buenos Aires decided to stop an antitrust investigation conducted by the National Commission for the Defense of Competition (or “CNDC” as it is known in Spanish ) against Monsanto Europe NV, Monsanto Technology LLC. and Monsanto Argentina SAIC (hereinafter all referred to as “Monsanto”).
A preliminary phase within the administrative proceeding was initiated in early 2006 when the Argentine National Secretary of Agriculture, Livestock, Fishing and Food (“SAGPyA”) accused Monsanto of abusing its dominant position and therefore of violating Argentine Antitrust Law No. 21,156. The argument was based on the fact that Monsanto had enforced the patent rights it held in Europe (the company did not hold any Argentine patent right on the technology at stake here).
According to a preliminary resolution issued by the CNDC in September 2007, the authority was of the opinion that there were sufficient grounds for dismissing the defensive arguments of the company and therefore for converting the preliminary phase of the proceeding into a full antitrust investigation. However, the resolution was overturned by the decision of the Court of Appeals; the result is analyzed below.