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De Koning vs. Levoplant, District Court The Hague, the Netherlands, 10 October 2014, case no.: C/09/469076 KG ZA 14-792

 Both De Koning and Levoplant engage in growing ornamental plants, in particular orchids. De Koning holds European Patent EP 2 070 407 (the “Patent”). The Patent relates to a ‘Method and tubular body for raising plants'. De Koning claimed that a nursing vase marketed by Levoplant infringed the Patent and demanded a ban and additional provisions. Levoplant put forward a reasoned defence, including an invalidity defence. In the framework of the invalidity defence De Koning phrased two auxiliary requests.

In the invalidity defence Levoplant alleged that EP 407 lacked inventive step. It challenged that the problem De Koning claimed was solved by the Patent, i.e. that young branches tend to grow round/become intertwined because vertical growth is allegedly impeded by leaves growing within the vase ('foliage') is in fact a real problem and adduced that this problem was in any case not disclosed in the original application nor in the Patent.


The District Court found the following. A Dutch patent, NL 1031049 ("NL 049") relating to a "Flowerpot with an annular attachment" is the prior art. With respect to the known use of an "annular attachment" known from NL 049 the Patent states that it “can adversely affect the structure of the leaves”. The Patent goes on to state that the application of a “tubular body” with the annular attachments in accordance with the Patent will result in “the branches of the plant […] will be trained vertically upwards by the guide surfaces and cannot intertwine with branches of adjacent plants”. However the District Court found that this effect was also attained using nursing vases dating back before the priority date, including that of NL 049. De Koning recognised this itself and designated NL 049 as the closest prior art. In other words, the problem claimed in the Patent was non-existent, or at least was solved by the closest prior art. The District Court therefore ruled that the inventive step of claim 1 of the Patent could not relate to this aspect.

According to the Patent leaves surrounded by a “tubular body” would be supported by the edges of the guide surfaces “without abutting against a wall part of the tubular body over a large part of their surface area, so that the structure of the leaves is not adversely affected”. According to Levoplant the person skilled in the art would not be able to deduce from the patent how the latter effect – the structure of the leaves not being adversely affected – was achieved. At the court hearing the patent attorney representing De Koning stated that the purpose of the invention described in the Patent, i.e. to provide a method for growing plants that would overcome the objection of the method according to NL 049 (the structure of the leaves being adversely affected), was not achieved by the Patent either. The District Court ruled that the alleged inventive step of claim 1 of the Patent could not relate to this aspect either.

According to De Koning the inventive step related to recognizing the problem of branches growing round and becoming intertwined in the vase. This allegedly was the objective technical problem in relation to NL 049 which was solved by the Patent by providing vertical guide surfaces. The District Court gathered from De Koning's arguments that the leaves were supported by these guide surfaces, which created room behind the leaves in the (corners of the) guide surfaces for branches that could thus grow in a vertical direction behind the leaves. The District Court did not follow this line of reasoning.

First of all, De Koning designated NL 049 the closest prior art. The problem phrased in the Patent should therefore in principle be considered the starting point. When applying the problem-solution-approach it would therefore not be obvious to rephrase the technical problem: for there was no closer prior art that would justify a rephrasing of the objective problem. This could change if the problem stated in the Patent was not solved, which was what De Koning adduced. However, the District Court did not follow De Koning's arguments in this respect. In this situation the not too simple question arose as to the bandwidth within which a technical problem could be rephrased. The District Court saw no room for this in the preliminary relief proceedings, stating that the rephrasing proposed by De Koning was not permitted.

In the preliminary opinion of the District Court it was relevant that the average person skilled in the art who would attempt to establish what exactly the Patent added to the prior art on the priority date, could not deduce from the original application that the problem the Patent aimed to solve related to the branches within the vase intertwining. When requested, De Koning acknowledged that the person skilled in the art would in vain be looking for an explicit paragraph in the original application in this respect. According to the District Court, the Patent did not contain any implied clues that would justify this interpretation.

The District Court ruled that there was reasonable doubt as to inventive step of claim 1 of the Patent and, in the absence of any other arguments in this respect, also with respect to the dependent claims invoked. The auxiliary requests phrased did not change this situation. De Koning's claims were denied and De Koning was ordered to settle Levoplant's full legal costs.

Read the decision (in Dutch) here.

Head note: Wim Maas, Deterink