On 8 May the District Court of The Hague passed judgement in the case of Cresco versus Taste of Nature. In the proceedings on the merits of this case, Cresco contested, among other things, the patentability of red radish seedlings, because they are generated through essentially biological methods, i.e. classical plant breeding.
The District Court of The Hague denies this argument, as Article 53(b) of the European Patent Convention only excludes essentially biological methods from patentability and not the products, not even if those products are obtained by an essentially biological method (in this case the red radish seedlings). As long as a plant meets the criteria for patentability of 'novelty, inventivity and industrially applicability' and it is not a plant variety, that plant is patentable.
As such, the District Court refutes a previous judgement of 2012 in preliminary proceedings, related to this case. Another interesting aspect is that the Enlarged Board of Appeal of the European Patent Office has to deal with exactly the same questions in the so-called tomato and broccoli cases (G 2/12). Hopefully the District Court points the way for the Enlarged Board with this judgement.
Bart Swinkels represented Taste of Nature (and licensee Koppert Cress) in this case, in collaboration with Paul Steinhauser, lawyer.
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