The Hague: Plants Obtained by Unpatentable Processes Are Unpatentable, Too

Patent Baristas:
The Hague rendered a judgment in the patent case between Taste of Nature (Koppert Cress) and Cresco on the patentability of a plant (Raphanus sativa) obtained by an unpatentable biological process. Court of the Hague, 408315 / KG ZA 11-1414.
Taste of Nature started the summary proceedings in early December 2011. They were of the opinion that Cresco, by selling their Red Radish Cress (purple Radish sprouts), was infringing the patent of Taste of Nature.
Taste of Nature developed a seedling of radish (Raphanus sativa) that is characterized by a high anthocyanin level. Anthocyanin is an antioxidant that gives the plant a red, purple or black color, and is regarded as a favorable substance from a health perspective.
Taste of Nature holds European patent EP 1 290 938 (the “Raphanus Patent” or “EP 938”),” which relates to a plant and a sprout of a plant of the radish species Raphanus sativa with an increased anthocyanin level, and to methods for its production.
Claim 1 reads as follows.

1. A Raphanus sativa plant, obtainable by screening Raphanus sativa plan far [this should probably be: “plants for”; Summary Proceedings Judge] their ability to produce sprouts with at least some purple coloring, selfing and/or crossing said plants for several generations and selecting progeny having sprouts with purple coloring, characterized in that the sprout of said plant comprises anthocyanins at a level of at least 800 nmol per gram fresh weight of sprout.

The description of EP 938 includes the following sections:

[0012] The Raphanus plant of the invention preferably is a plant of the species Raphanus sativa, more preferably the plant is obtained through breeding and selection from the Raphanus sativa lines CGN 6924, CGN 7240, or both. Most preferably, the Raphanus plants of the invention are obtained through …