Never Too Late: If you missed the IPKat last week!

If you had a busy week or were away on holiday, no worries! Join this Kat for a quick weekly catch-up. 

Patents

Rose Hughes analysed T 1057/22 concerning the second medical use of a fish oil and juice emulsion to treat cancer. The patentee's (SmartFish) claim covered the therapeutic use of its health-food product even though there is no clinical evidence that its product “Nutrifriend” can treat or prevent cancer. Also, the claims were limited to an auxiliary request for the treatment of pancreatic or neurological cancer. The patent was opposed by rival nutritional supplement company, Nutricia, arguing there might be other compositions contributing to the effect on cancer cells. Nutricia also questioned the sufficient disclosure and inventive step of the application. Ultimately, the Board of Appeal dismissed the Opponent's arguments and decided to maintain the patent. While explaining this case, Rose Hughes pointed out the relatively low sufficiency bar in Europe for second medical use inventions.

Katfriend Peter Arrowsmith (GJE) discussed the recent Court of Appeal decision in Comptroller - General of Patents, Designs and Trade Marks v Emotional Perception AI Limited [2024] EWCA Civ 825. The case concerned the claimed method of providing recommendations for media files, which is achieved by training an artificial neural network (ANN). Reversing the High Court 2023 judgment, the Court of Appeal decided that an ANN involves a program for a computer. However, the changes made by the UKIPO after the High Court decision have now become a challenge for the applicants since they have to reconsider their filing strategies. Both the High Court and the Court of Appeal's decisions on the Emotional Perception case caused a discussion on whether we need to consider some changes in the near future or not.

Gif by Riana Harvey

Guest UPCKats, Agathe Michel-de Cazotte, Hiske Roos, and Laura Mikkelsen (Carpmaels) analyzed a must-read case in the UPC IPKat series - Mystromer v. Revolt Zycling, UPC_CFI_177/2023. The patent protects a “combination structure of bicycle frame and motor hub”. This case is special since it is the very first UPC decision and was not appealed. Moreover, it provides an insight into ex parte injunctions. The case continued with an order for penalty payment in October 2023. Overall, the UPC showed its determination when it comes to enforcement.

Plant Varieties

Katfriends Federico Caruso and Dr. Valentina Predazzi (Società Italiana Brevetti) discussed the UPC's finding that mushrooms are not plants. The UPC granted a preliminary injunction in UPC_CFI_195/2024 addressing two key issues, a procedural and substantive one. One of the top-selling brown mushrooms worldwide, called 'Heirloom,' has been holding a patent since June 2016. However, the discussion arose when the owner, Amycel, found a Polish farmer’s mushroom strain named 'Cayene' in 2017. After starting an infringement action in July 2023, Amycel filed an action with the Hague Local Division of the UPC in May 2024. One issue was assessing the urgency requirement since Amycel had waited almost a year after filing the Polish action before commencing the UPC action. The second issue in evaluating the nullity argument raised by the defendant came from the question whether mushrooms should be considered plants. The Polish farmer had argued that mushrooms are excluded from patentability.