Taste of nature in court as plant growers slug it out over red radish patent

We've just had tomatoes and broccoli [on which see last week's Katpost by David, here], and now it's the turn of red radishes [this Kat's favourite is the white radish: for more information on radishes, click here]. From Rita Prins of Cresco BV comes the following episode from The Hague where, this Kat can confirm, it's not just the human rights of European Patent Office employees that come under scrutiny but real patents too. This is what Rita tells the Kats:
The District Court of The Hague delivered a decision in a patent dispute between Cresco and Taste of Nature on 18 March when it held that Taste of Nature’s patent for red radish plants was invalid since the seeds, sprouts and the plant itself -- all of which fell within the scope of the patent -- had been made public to customers of Koppert Cress before the patent was even applied for. Cresco is very pleased with this outcome and will resume deliveries of red radishes to its customers.

These proceedings began in 2011 when Taste of Nature  accused Cresco of infringing patent EP 1 290 938 for red radish sprouts. The patent describes a plant that can exclusively be bred by using essential biological processes (which are excluded from patentability under Article 53(b) of the European Patent Convention).

Cresco was initially successful in resisting an application for interim injunctive relief, arguing that a plant that can only be bred using an essential biological process should also be excluded from patentability. The Court of Appeal decided otherwise and ordered Cresco to stop producing and selling the red radish sprouts. The latest decision, on the merits, has however gone in favour of Cresco.
You can read the decision on the merits, in Dutch, here.

This Kat would appreciate some clarification as to why the decision on the merits was based on lack of novelty rather than on the ground of non-patentable subject matter.  Can anyone give further information, please?

Why and how cats and radishes should be kept apart here and here
Slugs and radishes here
Heartburn and radishes here
Taste of nature in court as plant growers slug it out over red radish patent Taste of nature in court as plant growers slug it out over red radish patent Reviewed by Jeremy on Sunday, March 29, 2015 Rating: 5


  1. The decision is the follow up to the decision of 8 May 2013 (now cited in G2/13) in which the issue of allowability under Art. 53(b) was already decided. Only thereafter witnesses about the public prior use were heard by the court. This is generally done only when necessary in continental court proceedings. For instance only if the patent can not be revoked (or found non-infringed) on grounds which do not require hearing witnesses.

  2. The EP lawblog wrote about the proceedings last year (http://www.eplawpatentblog.com/eplaw/2013/06/nl-taste-of-nature-cresco.html). The post also contains a link to an English translation of the intermediate decision on patentability of the subject matter that preceded this decision... (http://www.eplawpatentblog.com/2013/June/vonnis%20ToN%20Cresco%20eng.docx)


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