The Hague rendered a judgment in the patent case between Taste of Nature (Koppert Cress) and Cresco on the patentability of a plant (Raphanus sativa) obtained by an unpatentable biological process. Court of the Hague, 408315 / KG ZA 11-1414.

Taste of Nature started the summary proceedings in early December 2011. They were of the opinion that Cresco, by selling their Red Radish Cress (purple Radish sprouts), was infringing the patent of Taste of Nature.

Taste of Nature developed a seedling of radish (Raphanus sativa) that is characterized by a high anthocyanin level. Anthocyanin is an antioxidant that gives the plant a red, purple or black color, and is regarded as a favorable substance from a health perspective.

Taste of Nature holds European patent EP 1 290 938 (the “Raphanus Patent” or “EP 938”),” which relates to a plant and a sprout of a plant of the radish species Raphanus sativa with an increased anthocyanin level, and to methods for its production.

Claim 1 reads as follows.

1. A Raphanus sativa plant, obtainable by screening Raphanus sativa plan far [this should probably be: “plants for”; Summary Proceedings Judge] their ability to produce sprouts with at least some purple coloring, selfing and/or crossing said plants for several generations and selecting progeny having sprouts with purple coloring, characterized in that the sprout of said plant comprises anthocyanins at a level of at least 800 nmol per gram fresh weight of sprout.

The description of EP 938 includes the following sections:

[0012] The Raphanus plant of the invention preferably is a plant of the species Raphanus sativa, more preferably the plant is obtained through breeding and selection from the Raphanus sativa lines CGN 6924, CGN 7240, or both. Most preferably, the Raphanus plants of the invention are obtained through breeding and selection from the Raphanus sativa line V33, (i.e. ATCC No. PTA-3630).

In respect of the patentability of essentially biological processes within the meaning of Article 53, opening lines and (b), of the European Patent Convention (the “EPC”), the Enlarged Board of Appeal (the “EBA”) of the European Patent Agency ruled as follows:

 Hence, in more general terms, the conclusion to be drawn is that a process for the production of plants, which is based on the sexual crossing of whole genomes and on the subsequent selection of plants, in which human intervention, including the provision of a technical means, serves to enable or assist the performance of the process steps, remains excluded from patentability as being essentially biological within the meaning of Article 53(b) EPC.

However, if a process of sexual crossing and selection includes within it an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then that process leaves the realm of the plant breeding, which the legislator wanted to exclude from patentability. Therefore, such a process is not excluded from patentability under Article 53(b) EPC but qualifies as a potentially patentable teaching.

The above applies only where such additional step is performed within the steps of sexually crossing and selection, independently from their number of repetitions. Otherwise the exclusion of sexual crossing and selection processes from patentability under Article 53(b) EPC could be circumvented simply by adding steps which do not properly pertain to the crossing and selection process, being either upstream steps dealing with the interpretation of the plant(s) to be crossed or downstream steps dealing with the further treatment of the plant resulting from such crossing and selection process.

Taste of Nature argued that a patentable invention is involved because EP 938 relates to products (a plant, a sprout, a holder with sprouts or plants and material of a plant) obtained by using a certain method, rather than that method itself.

The Summary Proceedings Judge disagreed:

In its provisional opinion it is plausible that under Article 53, opening lines and (b), of the EPC, not only an essentially biological method is unpatentable, such as the “classical breeding” in this case, but also a product directly obtained by using that method, because a method claim also protects the product directly obtained using that method (see Article 64(2) of the EPC). If it were to be ruled that a product-by-process claim is admissible for the directly obtained product of an unpatentable essentially biological method, that would render the exclusion in Article 53, opening lines and (b), of the EPC as interpreted by the EBA in G1/08 pointless, because in that case the same situation would be involved as if the EBA had considered the process claims admissible, which is not the case. The view proposed by Taste of Nature – which, when requested, it was unable to substantiate otherwise than arguing that that the EBA did not expressly state its opinion on a product-by-process claim – is not a useful interpretation of, and does not do justice to, what must be regarded according to the EBA, as stated in its judgment substantiated in detail, as the purpose and scope of Article 53, opening lines and (b), of the European Patent Convention, and is dismissed.

Cresco can now start nullity proceedings, in which the Court is asked to nullify the patent of Taste of Nature in The Netherlands.

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