Novozymes v. DSM Food Specialties, District Court The Hague, The Netherlands, 19 May 2010, Case No. 348157/HA ZA 093220, with thanks to Simon Dack, De Brauw Blackstone Westbroek
Novozymes holds a European patent concerning a method preparing dough comprising, amongst other things, adding a lipolytic enzyme having activity towards digalactosyl diglyceride and the phospolipid (EP 1 131 416). Adding this lypolytic enzyme is said to help produce emulsifiers in the dough which would enhance its quality. DSM introduced its Panamore product, a direct competitor of Novozymes’ Lipopan products, in 2008. Novozymes is of the opinion that DSM’s Panamore product infringes on Novozymes European patent. DSM’s defends itself by invoking added matter, insufficient disclosure, lack of novelty and lack of inventive step. The District court holds the Dutch part of Novozymes’ patent invalid due to insufficient disclosure (Article 83 EPC). DSM’s other defenses are therefore not discussed by the District Court.
Article 83 EPC prescribes that a European patent must disclose the invention in a manner sufficiently clear and complete for it to be carried out by an average person skilled in the art. In other words, the disclosure of the invention must be reproducible without undue burden. The District Court finds that these requirement have not been met by Novozymes and refers to the claims of the patent as free-beer claims, meaning that by these claims Novozymes tries to protect something that everyone would want (free beer for instance), without clearly disclosing how the average skilled person could reach such desirable results.