UPC News: Vossius-Brinkhof win PI for Amycel
Vossius&Brinkhof UPC Litigators won a preliminary injunction for Amycel at The Hague Local Division. Amycel alleged that a Polish defendant infringed Amycel’s patent for a brown mushroom strain with defendant’s Cayene mushroom strain. On 31 July 2024, The Hague LD granted an injunction covering relevant UPC states and other ancillary claims.
The Hague LD has put itself on the map as a rocket docket: about a month after service of the PI application, a hearing was scheduled and a decision provided three weeks thereafter. Defendant filed a defense brief, Amycel a reply to the nullity defense and several other briefs were submitted on various issues.
In sum, The Hague LD considers:
- No undue delay: Amycel acted diligently as a prudent patentee to anticipate defences raised by defendant pre-trial by performing genetical and morphological experiments. The LD appreciates that this takes time. After Amycel found Cayene in the UPC territory (end July 2023), Amycel filed proceedings as soon as it had gathered the reasonable evidence (start May 2024).
- Validity: defendant’s novelty attacks were insufficiently substantiated. The LD dismissed defendant’s assertion that the patent’s claim contravenes Art. 53(b) EPC’s exclusion of “plant or animal varieties” from patentability. This exception should be construed narrowly. The EPC’s legislator did not ‘forget’ mushrooms and fungi are a separate, distinct kingdom.
- Infringement: parties agreed in the context of these proceedings that for infringement it suffices that Cayene and the patented BR06 strain are genetically Defendant argued 100% genetic similarity should be established. Amycel evidenced that even for replicate samples a less than 100% similarity is inevitable due to technical and biological reasons. The LD considers that all expert evidence shows that Cayene and BR06 have a genetic identity of at least the same degree as would be expected for biological replicates of the same strain. The LD finds infringement.
The Hague LD grants a PI covering all relevant UPC states. Defendant is also ordered to deliver up Cayene present in those states and provide a written account of customers. Interim costs are awarded, penalty sums set, and a security amount is determined for enforcement.
Amycel’s team was led by Rik Lambers with team members Daan de Lange and Jasmijn de Groot from Brinkhof and Tilmann Künzl and Philipp Marchand from Vossius.