On 8th May 2012 the District Court of The Hague passed judgment in Cresco v Taste of Nature. In the proceedings on the merits of this case, Cresco contested, among other things, the patentability of red radish seedlings because they were generated through essentially biological methods (ie, classical plant breeding).

The District Court of The Hague denied this argument, as Article 53(b) of the European Patent Convention excludes only essentially biological methods from patentability and not the products – even if those products are obtained by an essentially biological method (in this case, the red radish seedlings). As long as a plant meets the criteria for patentability of "novelty, inventiveness and industrial applicability" and is not a plant variety, that plant is patentable.

In so ruling, the district court refuted a 2012 judgment in preliminary proceedings related to this case. Another interesting aspect is that the Enlarged Board of Appeal of the European Patent Office must deal with exactly the same questions in the tomato and broccoli cases (G 2/12). Hopefully the district court has shown the enlarged board the way with this judgment.

This article first appeared in IAM magazine. For further information please visit www.iam-magazine.com.