Both Taste of Nature and Cresco operate in the field of the production and sale of sprouts and seedlings which are edible young vegetable plants. Taste of Nature has developed a seedling of a radish being characterized by a high level of anthocyanin (antioxidant), protected by its European patent EP 1 290 938 (“EP ‘938”), as validated in the Netherlands. The patent inter alia relates to methods for the production of the seedling.
On 31 January 2012 the judge in summary injunction proceedings of the District Court of The Hague rejected Taste of Nature claim for infringement against Cresco. The judge considered the patent of Taste of Nature invalid in view the exclusion of patentability under article 53(b) EPC. In the reasons the judge stated that “it is plausible that under Article 53, opening lines and (b), of the EPC, not only an essentially biological method is unpatentable, such as the “classical breeding” in this case, but also a product directly obtained by using that method, because a method claim also protects the product directly obtained using that method (see Article 64(2) of the EPC).”