The food industry has historically relied heavily on trade secrets and trademarks for protection. However, the filing of food-related patent applications is steadily increasing. Last year there were over 2000 new patent applications in food-related classifications at the European Patent Office alone. At the same time, we are beginning to see an increase in the amount of litigation regarding food patents.
The Unified Patent Court (UPC) is the new court in which all unitary patents and many European patents are litigated. It opened on 1 June 2023, so there are a number of open questions about its processes and likely outcomes. Unitary Patents also became available on 1 June 2023. In the first year of operation nearly 20% of European patents used the unitary route on grant with nearly 30,000 Unitary Patents being registered in the first year.
It seems likely that such unitary patents, which all fall within the jurisdiction of the UPC, will be of interest to the food industry since they can ensure wide coverage with potentially lower total costs. At the same time, the UPC will be an attractive forum for the food industry as it has tight deadlines resulting in relatively quick results. In the fast-moving world of food product launches, quick court decisions are highly desirable to patent owners – such as the swift granting of preliminary injunctions to keep competitors off the market.
To look at how quickly these cases are being handled, there was a recent case filed by Amycell LLC against a Polish farmer (whose name was withheld). Amycell develops mushroom strains and sells the mushroom strain ‘BR06’ as ‘Heirloom’. It is the number one selling brown mushroom strain in the world, including Europe. The defendant is a Polish farmer who operates from Poland selling mushrooms and took over the business from his father. One of the brown strains offered for sale by the defendant is called ‘Cayene’.
Amycell is the owner of European Patent 1 993 350 directed to a particular strain of brown mushroom. The patent is valid in the UPC territories of The Netherlands, Germany, France and Italy.
Amycell filed an application for provisional measures at the Court of First Instance against the defendant. Amycell asked the court to order an injunction against the defendant so as to prevent the defendant from selling, importing or placing on the market the strain of brown mushroom sold by the defendant as ‘Cayene’.
Amycell had managed to purchase a sample of the defendant’s Cayene strain of brown mushrooms and sought to demonstrate that the defendant’s Cayene mushroom fell within the definition of the mushroom strain patented in EP 1 993 350. Amycell requested an injunction against the defendant to refrain from infringing the patent in any way in the territories of The Netherlands, Germany, France and Italy and a range of other measures.
Amycell sent samples of the defendant’s mushrooms to specialised laboratories for analysis in order to determine whether the defendant’s mushrooms infringed the patent. To substantiate its claim that the defendant had infringed the patent, it supplied the court with two invoices for sales of Cayene in the Netherlands and several reports on the genetic similarity of the BR06 strain and the Cayene strain.
The defendant argued that Amycell’s patent was invalid and requested a range of measures against Amycell. The defendant also submitted a report on the genetic comparison of the mushrooms that had been submitted in the corresponding Polish proceedings in order to show that the two strains of mushroom were different.
The court considered the evidence and was convinced with a sufficient degree of certainty that the patent was valid and that the defendant had infringed the patent. The court therefore granted an injunction, limited to the Cayene strain, and ordered the defendant to bear the costs of the proceedings.
The case was filed on 14 May 2024 and the court order was issued on 31 July 2024, only 12 weeks later. This demonstrates how fast an initial decision can be obtained at the Unified Patent Court. In view of the speed of obtaining injunctions such as these, that can apply to several countries, the Unified Patent Court is set to become an important forum for food litigation in the future.
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