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Essentially biological products

The district court in summary proceedings rejected Taste of Nature’s bid to ban infringement of their European Raphanus patent.

The court held that there is a significant chance that the patent will be revoked, because it relates to subject matter which is excluded from patentability.

The product-by-process claims of the Raphanus patent brought forth in the Dutch preliminary infringement suit against Cresco, are directed to products obtained by a process comprising the steps of selfing and/or sexual crossing Raphanus sativa plants and subsequently selecting plants that comprise high anthocyanin levels.

Recently, in G2/07 (broccoli case) and G1/08 (tomato case), the Enlarged Board of Appeal (EBA) decided that an essentially biological process for the production of plants, which is based on sexual crossing of whole genomes and the subsequent selection of plants is excluded from patentability.

Before the Dutch court, the patent proprietor did not dispute that the product-by-process claims of the Raphanus patent were directed to products obtained by such essentially biological processes. The patent proprietor argued, however, that the decision of the EBA in G2/07 and G1/08 did not relate to products obtained by these processes, but only to these essentially biological processes as such.

The EBA will probably have to deal with exclusion of patentability of products obtained by essentially biological processes in the near future, as in both the broccoli case and the tomato case, the patent proprietors reacted to the decision in G2/07 and G1/08 by deleting the process claims and limiting the patent to product-by-process claims. In response, the Technical Board of Appeal responsible for the tomato case already announced to (again) refer questions of law to the EBA, this time regarding the patentability of products obtained by an essentially biological process.

Anticipating on the developments before the European Patent Office, the Dutch court reasoned that, according to Art. 64(2) EPC, protection conferred by a process claim extends to the products directly obtained by such process. The court further reasoned that, if product-by-process claims directed to a directly obtained product of an essentially biological process were allowable, this would be inconsistent with the EBA”s decision to exclude from patentability a process of essentially biological nature.

For these reasons, the Dutch court decided to refuse Taste of Nature’s request to ban infringement of the product-by-process claims of the Raphanus patent, as the court holds that there is a fair chance that the patent will be found invalid.