Nutrition Sciences N.V. v. Kuminda N B.V., Court of Appeal, The Hague, The Netherlands, 29 June 2021, Case no. ECLI:NL:GHDHA:2021:2055

Nutrition is active in the field of ingredients for live stock feed and alleged that Noba infringes on the Dutch part of its EP 1 294 371 B2 relating to “medium chain fatty acids applicable as antimicrobial agents”.

In a counter claim, Noba attacked the validity of EP 371. This attack was successful. Using the problem-solution approach, the Court in first instance came to the conclusion that EP 371 is not inventive and invalidated the Dutch part of EP 371.

On appeal, the Court of Appeal confirms the ruling in first instance:

“According to settled case law of the Boards of Appeal of the European Patent Office and this Court, when formulating the objective technical problem, the technical effects of the invention claimed by the patent proprietor can only be taken into account if the skilled person, having regard to what is disclosed in the original patent application and his common general knowledge, would have found it plausible for the effects to occur on the relevant date. This so-called plausibility requirement arises from the general principle underlying patent law that the patent protection obtained must be in accordance with, and justified by, the contribution to the state of the art that has actually been made on the relevant date.

[…]

“It follows from the foregoing that the technical effect of the invention claimed by Nutrition according to EP 371, that a mixture of equal amounts of C8 and C10 in free form has better antimicrobial and selective action than when the salt form of those fatty acids is used, was not disclosed in the application as filed, let alone made plausible. In this state of affairs, it is not possible to rely on the studies carried out after the application date of EP 371 to substantiate the alleged technical effects that would be achieved with the measures according to EP 371.”

A copy of the judgment (in Dutch) can be read here.