UPC CFI LD The Hague, 31 July 2024: Provisional injunction under mushroom patent
20-08-2024 Print this page
Novelty arguments rejected (Article 54 EPC, Article 54 UPCA). Both novelty arguments raised by Defendant are unsubstantiated whereas the burden of presentation and proof for facts concerning the lack of validity of the patent and other circumstances allegedly supporting the Defendant's position lies with the Defendant.
Mushroom varieties/strains are not excluded from patentability as plant varieties (article 53(b) EPC). The exclusion […] does not encompass organisms other than plants and animals, such as mushrooms which belong to the fungi kingdom that is taxonomically distinct from the plant and animal kingdoms.
Claim construction (Article 69 EPC). Genetical identity can be assumed to exist also in case the sequencing results show a similarity of 99,88 % or above (with a standard deviation of +/- 0,0235). In fact, in view of the inevitable sequencing errors 100% identity will likely not be found even between identical samples (i.e. samples for the same strain) with the present techniques.
Provisional injunction granted (Rule 211(1) RoP, Rule 118.5 RoP, Rule 213.1 RoP).
No unreasonable delay between the finding of the Cayene at the end of July 2023 in the Netherlands and the filing of the Application on 3 May 2024. (Rule 211(4) RoP).
A cost decision (including the height of the costs to be reimbursed) is to be taken in the proceedings on the merits, that will have to follow these proceedings. The court shall specify the date pursuant to R. 213.1 RoP relevant for starting these proceedings in the order.
