Amycel v [Redacted] (UPC_CFI_195/2024)
Decision date:
31 July 2024
Osborne Clarke summary
- Amycel was granted a preliminary injunction against the defendant.
- The defendant argued that the patent's claim to mushroom strains contravened Article 53(b) EPC, which pertains to the exclusion of "plant or animal varieties" from patentability. The court pointed out that the exclusion concerns plant and animal varieties only and therefore does not encompass other organisms, such as mushrooms.
- Unreasonable delay in starting the proceedings, and consequently the possible lack of temporal urgency required for the ordering of provisional measures, only exists if the applicant has behaved in such a negligent and hesitant manner in requesting provisional measures after it became aware of the infringement of the patent that, from an objective perspective, it must be concluded that the applicant is not interested in promptly enforcing its rights.
- In assessing unreasonable delay, the court will take into account i) the burden of presentation and proof of facts needed to allegedly establish the applicant's entitlement to bring the proceedings and ii) the infringement or imminent infringement of its patent. This means that as soon as the applicant has knowledge of the alleged infringement, it must investigate it, take the necessary measures to clarify it and obtain the evidence needed to support its claims. In doing this, the applicant must initiate each of these steps in a timely manner and, as soon as the applicant has all the knowledge and evidence to enable it to start a "promising legal action", it must file its application for provisional measures without unreasonable delay.
- In this instance there was roughly a year's delay but, due to specific circumstances, the court did not find the delay unreasonable.
Issue
Curious about how UPC decisions might impact your business? Have questions about the UPC?
Reach out to our patents team for expert guidance and support.