Patent On Conventional Plant Dismissed For Lack Of Novelty, Firm Says

The District Court of The Hague ruled last week that a patent for red radish plants is invalid in the Netherlands for lack of novelty but did not rule on the fact that the particular plant was bred using essential biological processes. The case, between two Dutch companies, related to red radish sprouts on which one company held a patent.

The case was Cresco Handels B.V. v. Taste of Nature Holding B.V., related to European Patent Office (EPO) patent number EP 1 290 938. Taste of Nature breeds, grows and sells sprouts or seedlings, while Cresco mainly grows and sells sprouts, according to Thomas Berendsen, attorney for Legal Experience, and one of Cresco’s lawyers.

The attorneys for Taste of Nature were not reached at press time.

According to Berendsen, the ruling by the district court is based on the facts that the seeds, the sprouts and the plant that fall under the scope of the patent were made public (to customers of Taste of Nature) prior to the application date of the patent. “Therefore, the patent is not new and was invalidated. On that ground all claims of Taste of Nature have been denied,” he told Intellectual Property Watch.

“Although the district court in its interim judgement did not following Cresco in its opinion that products derived from essential biological processes should be excluded from patentability, Cresco has good hopes that the Enlarged Board of Appeal of the European Patent Office will decide in the Tomato and Broccoli cases in line with its arguments and rules that also products derived from essential biological processes fall under the exclusion of article 53b of the European Patent Convention,” he said.

At this moment only essential biological processes and not the products as such are excluded, he added.

The legal proceedings started in 2011 after Taste of Nature alleged patent infringement against Cresco for selling red radish sprouts

Cresco won the summary proceedings in first instance in January 2012, based on the argument that a plant that can only be bred using an essential biological process should also be excluded from patentability. However, the court of appeal reversed the ruling and imposed an injunction to Cresco to produce and sell the red radish sprouts, according to Cresco.

The 18 March ruling of the District Court of The Hague, based not on the essential biological process but on the fact that the product was made public before being patented, allows Cresco to start delivering its red radish sprouts again to its customers, said Cresco.

“Cresco is delighted with the result of the proceedings and hopes that the EPO will finally put the discussion about this type of patents to rest before the summer,” Berendsen said.

 

Image Credits: Flickr – Howard Stanbury