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UPC CFI 195/2024
May 3, 2024·EP1993350 +1 more: BROWN MUSHROOMS FOR COMMERCIAL PRODUCTION
- Case details
- StatusCase ClosedActionProvisional measuresCategoryProvisional Measures
- Parties
- ClaimantsReps: Hendrik W.j. Lambers (Brinkhof); Daan F. de Lange (Brinkhof); Jasmijn de Groot (Brinkhof)RespondentsReps: Michal Przyluski; Joanna Dargiewicz
- Division
- The Hague LD
- Technology
- Agriculture
- Language
- English
Decisions
- 2024-07-31PI grantedApplication for provisional measures
The Hague Local Division granted a preliminary injunction against the defendant prohibiting direct infringement of EP 1 993 350 B2 (relating to a hybrid Agaricus bisporus mushroom strain) in the Netherlands, Germany, France and Italy. The court held that the mushroom strain was not excluded from patentability under Art. 53(b) EPC and found a prima facie case of infringement. The defendant was ordered to deliver up infringing Cayene mushroom strains, provide customer information, pay an interim award of EUR 11,000 in costs, and penalties of up to EUR 50,000 per day for non-compliance. The injunction was made conditional on Amycel providing security of EUR 200,000.
Legal issues:Patentability exclusion for plant varieties under Art. 53(b) EPCInfringement of mushroom strain patentProvisional measures in provisional proceedingsSecurity for provisional measures under Rule 211.5 RoPDamages: 11,000
Documents
| Document title | Date | Public |
|---|---|---|
| Receipt | 2024-12-31 | Not public |
| Exhibit VB42 | 2024-12-31 | Not public |
| Exhibit VB43 | 2024-12-31 | Not public |
| Exhibit VB43 | 2024-12-31 | Not public |
| Amycel Appeal costs application | 2024-12-31 | Not public |
| Exhibit VB41 | 2024-12-31 | Not public |
| Exhibit VB42 | 2024-12-31 | Not public |
| Outcome of the Order | 2024-12-13 | Not public |
| this order is issued for technical reasons only | 2024-12-13 | Public |
| Outcome of the Order | 2024-12-13 | Not public |
| this order is issued for technical reasons only | 2024-12-13 | Public |
| Outcome of the Order | 2024-12-13 | Not public |
| this order is issued for technical reasons only | 2024-12-13 | Public |
| Outcome of the Order | 2024-12-13 | Not public |
| this order is issued for technical reasons only | 2024-12-13 | Public |
| Outcome of the Order | 2024-12-13 | Not public |
| this order is issued for technical reasons only | 2024-12-13 | Public |
| Preliminary injunction order | 2024-07-31 | Not public |
| Headnote-and-Keywords | 2024-07-31 | Not public |
| Measures_DecisionOutcome_Notification.pdf | 2024-07-31 | Not public |
| Preliminary injunction order | 2024-07-31 | Not public |
| Preliminary injunction order | 2024-07-31 | Public |
| ORAL_HEARING_REFERENCING_23163-2024-OH-HAG-LOC-UPC2024070910am | 2024-07-30 | Not public |
| ORAL_HEARING_REFERENCING_23163-2024-OH-HAG-LOC-UPC2024070910am | 2024-07-30 | Not public |
| summons | 2024-07-30 | Not public |
| this order is not relevant | 2024-07-30 | Public |
| Receipt | 2024-07-17 | Not public |
| Exhibit VB22 (redacted) - Invoice Verinomics 2.pdf | 2024-07-16 | Not public |
| Exhibit VB23 (redacted) - Work description Verinomics.xlsx | 2024-07-16 | Not public |
| Exhibit VB24 (redacted) - Invoice Royse_Redacted.pdf | 2024-07-16 | Not public |
| Redacted Rule 9 Request | 2024-07-16 | Not public |
| Exhibit VB19 (redacted) - Overview of representation costs Brinkhof.xlsx | 2024-07-16 | Not public |
| Amycel Rule 262 request | 2024-07-16 | Not public |
| Exhibit VB21 (redacted) - Invoice Verinomics 1.pdf | 2024-07-16 | Not public |
| Exhibit VB20 (redacted) - Overview of representation costs Vossius_Redacted.pdf | 2024-07-16 | Not public |
| Exhibit VB25 (redacted) - Work description Prof. Royse.pdf | 2024-07-16 | Not public |
| Exhibit VB26 (redacted) - Invoice Naktuinbouw_Redacted.pdf | 2024-07-16 | Not public |
| Receipt | 2024-07-09 | Not public |
| Request under Rule 9(1) | 2024-07-09 | Not public |
| Statement of the Defendant | 2024-07-09 | Not public |
| Receipt | 2024-07-08 | Not public |
| Exhibit VB29 Declaration Andrzej Slowinski | 2024-07-08 | Not public |
| Exhibit VB28 Mushroom business 20170712 (Polish) | 2024-07-08 | Not public |
| Exhibit VB28 Mushroom business 20170712 (Polish) | 2024-07-08 | Not public |
| Amycel R. 9 request (additional exhibits) | 2024-07-08 | Not public |
| Receipt | 2024-07-08 | Not public |
| Declaration of prof. Siwulski | 2024-07-05 | Not public |
| Request R9(1) | 2024-07-05 | Not public |
| Response to the Procedural Order | 2024-07-05 | Not public |
| Receipt | 2024-07-05 | Not public |
| Exhibit VB27 Invoice delivery note Spyra sales | 2024-07-04 | Not public |
| Application R 9 RoP additional exhibit | 2024-07-04 | Not public |
| Amycel reply invalidity defence | 2024-07-04 | Not public |
| opportunity to comment | 2024-07-03 | Not public |
| opportunity to comment | 2024-07-03 | Not public |
| Panel-Appointment | 2024-07-03 | Not public |
| Receipt | 2024-07-02 | Not public |
| Exhibit VB21 - Invoice Verinomics 1 | 2024-07-02 | Not public |
| Exhibit VB19 - Overview of representation costs Brinkhof | 2024-07-02 | Not public |
| Exhibit VB24 - Invoice Royse | 2024-07-02 | Not public |
| Exhibit VB20 - Overview of representation costs Vossius | 2024-07-02 | Not public |
| Exhibit VB23 - Work description Verinomics | 2024-07-02 | Not public |
| Exhibit VB21 - Invoice Verinomics 1 | 2024-07-02 | Not public |
| Exhibit VB22 - Invoice Verinomics 2 | 2024-07-02 | Not public |
| Amycel Rule 9 procedural costs signed | 2024-07-02 | Not public |
| Exhibit VB25 - Work description Prof. Royse | 2024-07-02 | Not public |
| Exhibit VB25 - Work description Prof. Royse | 2024-07-02 | Not public |
| Exhibit VB26 - Invoice Naktuinbouw | 2024-07-02 | Not public |
| Exhibit VB23 - Work description Verinomics | 2024-07-02 | Not public |
| Exhibit VB26 - Invoice Naktuinbouw | 2024-07-02 | Not public |
| Exhibit VB24 - Invoice Royse | 2024-07-02 | Not public |
| Amycel Rule 9 procedural costs signed | 2024-07-02 | Not public |
| Exhibit VB20 - Overview of representation costs Vossius | 2024-07-02 | Not public |
| Exhibit VB22 - Invoice Verinomics 2 | 2024-07-02 | Not public |
| Exhibit VB19 - Overview of representation costs Brinkhof | 2024-07-02 | Not public |
| opportunity to comment and oral hearing | 2024-06-28 | Not public |
| Acknowledgement-of-lodging | 2024-06-26 | Not public |
| Genetic report by Dr. Karbarz | 2024-06-26 | Not public |
| Selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| SNP analysis of Dr. Karbarz | 2024-06-26 | Not public |
| Notification of suspected criminal activities | 2024-06-26 | Not public |
| Extract from the “Mushrooms” bulletin No. 4/2006 | 2024-06-26 | Not public |
| Selected page from Mushroom 2/2007 | 2024-06-26 | Not public |
| Offers of the Defendant’s strain | 2024-06-26 | Not public |
| ATCC sample furnishing report | 2024-06-26 | Not public |
| Genetic report by Dr. Karbarz | 2024-06-26 | Not public |
| Selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| Report Sobieralski | 2024-06-26 | Not public |
| Amycel Poland declaration | 2024-06-26 | Not public |
| Selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| Pubmed profile of Prof. Dellaporta | 2024-06-26 | Not public |
| Paper by Dr. James W. Sinden, Strain Adaptability (The Mushroom Journal, May 1981) | 2024-06-26 | Not public |
| Response under Rule 209(1)(a) UPC RoP | 2024-06-26 | Not public |
| Report Sobieralski | 2024-06-26 | Not public |
| Request to stop acts of unfair competition | 2024-06-26 | Not public |
| Calendar 2006 | 2024-06-26 | Not public |
| SNP analysis by Dr. Karbarz | 2024-06-26 | Not public |
| Report of Dr. Sobieralski | 2024-06-26 | Not public |
| selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| PubMed profile of Prof. Dellaporta | 2024-06-26 | Not public |
| Calendar from 2006 | 2024-06-26 | Not public |
| Paper by Dr. James W. Sinden, Strain Adaptability (The Mushroom Journal, May 1981) | 2024-06-26 | Not public |
| Genetic analysis of Dr. Karbarz | 2024-06-26 | Not public |
| Notification of suspected criminal activities | 2024-06-26 | Not public |
| Report of Dr. Sobieralski | 2024-06-26 | Not public |
| ATCC sample furnishing report | 2024-06-26 | Not public |
| Extract from the “Mushrooms” bulletin No. 4/2006 | 2024-06-26 | Not public |
| Amycel Poland declaration | 2024-06-26 | Not public |
| Offers of the Defendant’s strain | 2024-06-26 | Not public |
| Genetic analysis of Dr. Karbarz | 2024-06-26 | Not public |
| Selected page from Mushrooms 2/2007 | 2024-06-26 | Not public |
| selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| Response under Rule 209(1)(a) UPC RoP | 2024-06-26 | Not public |
| selected pages from the Polish publication “Mushrooms” 3/2006 4/2006, 1/2007, 2/2007, 3/2007, 4/2007 | 2024-06-26 | Not public |
| Request to stop acts of unfair competition | 2024-06-26 | Not public |
| Headnote-and-Keywords | 2024-06-26 | Not public |
| Outcome of the Order | 2024-06-25 | Not public |
| R. 109 - simultaneous translation request | 2024-06-25 | Public |
| R. 109 - simultaneous translation request | 2024-06-25 | Not public |
| Amycel Response R. 109.1 RoP Application | 2024-06-18 | Not public |
| opportunity to comment | 2024-06-12 | Not public |
| opportunity to comment | 2024-06-12 | Not public |
| Receipt | 2024-06-12 | Not public |
| R.209.1 procedural order | 2024-06-12 | Public |
| Template-Order | 2024-06-12 | Not public |
| R.209.1 procedural order | 2024-06-12 | Not public |
| Template-Order | 2024-06-12 | Not public |
| Article 51(2) UPCA request | 2024-06-12 | Not public |
| Acknowledgement of access to case | 2024-06-11 | Not public |
| Notification Of Service | 2024-05-31 | Not public |
| Confirmation of Service_23163-2024 | 2024-05-31 | Not public |
| Letter for Service | 2024-05-16 | Not public |
| Panel-Appointment | 2024-05-16 | Not public |
| Application-For-Measures-Receipt | 2024-05-15 | Not public |
| Formal-checks_Notification-of-positive-outcome | 2024-05-15 | Not public |
| Exhibit VB02 - Proof of payment | 2024-05-14 | Not public |
| Exhibit VB15 - Prof. Dellaporta report 8 November 2022 | 2024-05-14 | Not public |
| Exhibit VB09 - Extract from the Polish National Official Business Register (REGON) | 2024-05-14 | Not public |
| Exhibit VB14.05 - Reply counsel Spyra dated 15 December 2023 | 2024-05-14 | Not public |
| Exhibit VB04 - Sonnenberg 2017 | 2024-05-14 | Not public |
| Exhibit VB08.01 - Biographical Sketch - Royse | 2024-05-14 | Not public |
| Polish translation Application for provisional measures UPC Local Division The Hague | 2024-05-14 | Not public |
| Exhibit VB06.06 Li H et all 2011 A statistical framework for SNP Calling, | 2024-05-14 | Not public |
| Exhibit VB07.01 Similarity Matrix 750.035SNP markers | 2024-05-14 | Not public |
| Exhibit VB06.03 Dendrogram Simple Matching coefficient | 2024-05-14 | Not public |
| Exhibit VB10 - Website www.spyra.co | 2024-05-14 | Not public |
| Exhibit VB12 - Invoice Spyra dated 24 July 2023 | 2024-05-14 | Not public |
| Exhibit VB06.02 Dendrogram Dice coefficient | 2024-05-14 | Not public |
| Exhibit VB06.07 Vos et al 1995 A new technique for DNA fingerprinting | 2024-05-14 | Not public |
| Exhibit VB06.08 Order Confirmation 20230605144609 | 2024-05-14 | Not public |
| Exhibit VB01 - Excerpt EPO and national patent registers | 2024-05-14 | Not public |
| Exhibit VB14.01 - Reply on behalf of Mr. Spyra on cease and desist letter dated 23 October 2023 | 2024-05-14 | Not public |
| Formal response to request for amendments | 2024-05-14 | Not public |
| Application for provisional measures | 2024-05-14 | Not public |
| Exhibit VB13 - Cease and desist letter 17 oktober 2023 | 2024-05-14 | Not public |
| Exhibit VB08.03 - Data generated by ANICC | 2024-05-14 | Not public |
| Exhibit VB05 - Grounds for the decision of the EPO dated 12 November 2018 | 2024-05-14 | Not public |
| Exhibit VB14.04 - Reply from counsel Amycel dated 6 December 2023 | 2024-05-14 | Not public |
| Exhibit VB06.04 Distance Matrix based on 750.035 SNP markers | 2024-05-14 | Not public |
| Exhibit VB06.01 Jaccard Similarity matrix 94 AFLP markers | 2024-05-14 | Not public |
| Exhibit VB08.02 - Summary of test protocol of ANICC | 2024-05-14 | Not public |
| Exhibit VB14.02 - Email counsel Spyra dated 1 November 2023 and reply counsel Amycel dated 14 November 2023 | 2024-05-14 | Not public |
| Exhibit VB08 - Expert report Prof. Royse (signed) | 2024-05-14 | Not public |
| Exhibit VB16 - Prof. Dellaporta report dated 10 May 2023 | 2024-05-14 | Not public |
| Exhibit VB03 - EP 1 993 350 B2 | 2024-05-14 | Not public |
| Exhibit VB06.05 Similarity Matrix 750.035SNP markers | 2024-05-14 | Not public |
| Exhibit VB07 - Report of Prof. Dellaporta 1 May 2024 (signed) | 2024-05-14 | Not public |
| Exhibit VB11.02 - English translation official record of observation | 2024-05-14 | Not public |
| Exhibit VB17 - English translation Report on sequencing filed by Spyra in the Polish proceedings | 2024-05-14 | Not public |
| Exhibit VB11.01 - Original Dutch version official record of observation | 2024-05-14 | Not public |
| Exhibit VB06 - Naktuinbouw rapport | 2024-05-14 | Not public |
| Exhibit VB14.03 - Reply from counsel Spyra dated 22 November 2023 | 2024-05-14 | Not public |
| Exhibit VB18 - Response to report of Dr. Karbarz by Prof. Dellaporta in the Polish action dated 10 May 2023 | 2024-05-14 | Not public |
| Formal-checks_Request-for-correction | 2024-05-14 | Not public |
| Application-For-Measures-Acknowledgement | 2024-05-03 | Not public |
| Exhibit VB06.06 Li H et all 2011 A statistical framework for SNP Calling, | 2024-05-03 | Not public |
| Exhibit VB03 - EP 1 993 350 B2 | 2024-05-03 | Not public |
| Exhibit VB11.01 - Original Dutch version official record of observation | 2024-05-03 | Not public |
| Exhibit VB08 - Expert report Prof. Royse (signed) | 2024-05-03 | Not public |
| Exhibit VB06 - Naktuinbouw rapport | 2024-05-03 | Not public |
| Exhibit VB13 - Cease and desist letter 17 oktober 2023 | 2024-05-03 | Not public |
| Exhibit VB11.02 - English translation official record of observation | 2024-05-03 | Not public |
| Exhibit VB06.04 Distance Matrix based on 750.035 SNP markers | 2024-05-03 | Not public |
| Exhibit VB14.03 - Reply from counsel Spyra dated 22 November 2023 | 2024-05-03 | Not public |
| Exhibit VB05 - Grounds for the decision of the EPO dated 12 November 2018 | 2024-05-03 | Not public |
| Exhibit VB07.01 Similarity Matrix 750.035SNP markers | 2024-05-03 | Not public |
| Polish translation Application for provisional measures UPC Local Division The Hague | 2024-05-03 | Not public |
| Exhibit VB16 - Prof. Dellaporta report dated 10 May 2023 | 2024-05-03 | Not public |
| Exhibit VB14.05 - Reply counsel Spyra dated 15 December 2023 | 2024-05-03 | Not public |
| Exhibit VB06.03 Dendrogram Simple Matching coefficient | 2024-05-03 | Not public |
| Exhibit VB14.01 - Reply on behalf of Mr. Spyra on cease and desist letter dated 23 October 2023 | 2024-05-03 | Not public |
| Exhibit VB01 - Excerpt EPO and national patent registers | 2024-05-03 | Not public |
| Exhibit VB06.07 Vos et al 1995 A new technique for DNA fingerprinting | 2024-05-03 | Not public |
| Exhibit VB14.04 - Reply from counsel Amycel dated 6 December 2023 | 2024-05-03 | Not public |
| Application for provisional measures | 2024-05-03 | Not public |
| Exhibit VB04 - Sonnenberg 2017 | 2024-05-03 | Not public |
| Exhibit VB15 - Prof. Dellaporta report 8 November 2022 | 2024-05-03 | Not public |
| Exhibit VB17 - English translation Report on sequencing filed by Spyra in the Polish proceedings | 2024-05-03 | Not public |
| Exhibit VB07 - Report of Prof. Dellaporta 1 May 2024 (signed) | 2024-05-03 | Not public |
| Exhibit VB18 - Response to report of Dr. Karbarz by Prof. Dellaporta in the Polish action dated 10 May 2023 | 2024-05-03 | Not public |
| Exhibit VB14.02 - Email counsel Spyra dated 1 November 2023 and reply counsel Amycel dated 14 November 2023 | 2024-05-03 | Not public |
| Exhibit VB02 - Proof of payment | 2024-05-03 | Not public |
| Exhibit VB08.03 - Data generated by ANICC | 2024-05-03 | Not public |
| Exhibit VB09 - Extract from the Polish National Official Business Register (REGON) | 2024-05-03 | Not public |
| Exhibit VB06.08 Order Confirmation 20230605144609 | 2024-05-03 | Not public |
| Exhibit VB10 - Website www.spyra.co | 2024-05-03 | Not public |
| Exhibit VB12 - Invoice Spyra dated 24 July 2023 | 2024-05-03 | Not public |
| Exhibit VB06.02 Dendrogram Dice coefficient | 2024-05-03 | Not public |
| Exhibit VB06.01 Jaccard Similarity matrix 94 AFLP markers | 2024-05-03 | Not public |
| Exhibit VB08.02 - Summary of test protocol of ANICC | 2024-05-03 | Not public |
| Exhibit VB08.01 - Biographical Sketch - Royse | 2024-05-03 | Not public |
| Exhibit VB06.05 Similarity Matrix 750.035SNP markers | 2024-05-03 | Not public |
Coverage: Partial.Reasoning extracted with partial coverage — some sections may be incomplete.
Plain-English summary
Amycel LLC obtained a preliminary injunction from The Hague Local Division against a defendant (GDPR-redacted) prohibiting direct infringement of EP 1 993 350 B2, a patent covering a hybrid Agaricus bisporus (brown mushroom) strain, across the Netherlands, Germany, France, and Italy. The court held the mushroom strain was not excluded from patentability under Art. 53(b) EPC and found a prima facie case of infringement by the defendant's Cayene mushroom strain. The defendant was ordered to deliver up infringing strains, disclose customer information, pay EUR 11,000 in interim costs, and provide EUR 200,000 security to Amycel.
Accepted arguments
What the court agreed with — by party.
Mushroom strain (Agaricus bisporus hybrid BR06/Cayene) is not excluded from patentability under Art. 53(b) EPC
ClaimantLegal basis: Art. 53(b) EPCNote: The court found a prima facie case that the mushroom strain patent does not fall within the biological-exclusion exception, supporting patentability.
Prima facie case of direct infringement of EP 1 993 350 B2 by the Cayene mushroom strain
ClaimantLegal basis: Art. 25(a) UPCA; Art. 63(1) UPCANote: The court accepted Amycel's showing that defendant's commercialisation of Cayene in NL, DE, FR, IT fell within the patent claims.
Security of EUR 200,000 required as condition for enforcing provisional measures
RespondentLegal basis: R. 211.5 RoPNote: Defendant's request for security was granted because Amycel did not object, and the court used it to set the case value.
Rejected arguments
What the court did not agree with — and why.
Requested case value of EUR 500,000 for determining recoverable-costs ceiling
ClaimantLegal basis: R. 211.5 RoPReason: Court found the EUR 500,000 figure insufficiently substantiated and instead used the EUR 200,000 security amount as a proxy for case value.
Key legal principles
Doctrines and rules cited in the reasoning.
Mushroom strain patent not excluded from patentability under Art. 53(b) EPCProvisional measures require prima facie infringementSecurity may be ordered as condition for enforcement (R. 211.5 RoP)Case value may be inferred from the security amount requested by the defendantInterim award of costs limited to court fees where merits proceedings are to follow
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