De Koning vs. Levoplant, District Court The Hague, the Netherlands, 10 October 2014, case no.: C/09/469076 KG ZA 14-792
Both De Koning and Levoplant engage in growing ornamental plants, in particular orchids. De Koning holds European Patent EP 2 070 407 (the “Patent”). The Patent relates to a ‘Method and tubular body for raising plants'. De Koning claimed that a nursing vase marketed by Levoplant infringed the Patent and demanded a ban and additional provisions. Levoplant put forward a reasoned defence, including an invalidity defence. In the framework of the invalidity defence De Koning phrased two auxiliary requests.
In the invalidity defence Levoplant alleged that EP 407 lacked inventive step. It challenged that the problem De Koning claimed was solved by the Patent, i.e. that young branches tend to grow round/become intertwined because vertical growth is allegedly impeded by leaves growing within the vase ('foliage') is in fact a real problem and adduced that this problem was in any case not disclosed in the original application nor in the Patent.