Plantlab v. Certhon, District Court of The Hague, 30 May 2018, ECLI:NL:RBDHA:2018:6242

The above matter revolves around the validity of a national and – parallel – European Patent seeking protection for a so-called vertical farming (or: city farming) system and the alleged infringement thereof.

Facts

On 14 April 2010 (the legal predecessor of) Plantlab Groep B.V. (“Plantlab”) obtained the Dutch patent NL 2002091 (“NL 091”) for a system and method for growing a plant in an at least partially conditioned environment. On the basis of the same claims an application for a patent was made before the EPO and the USPTO. The EPO granted EP 2 348 814 (“EP 814”) on the basis of NL 019 on 1 April 2015, but the examiner of the USPTO had refused the parallel US application stating that the claimed subject matter is “old and notoriously well known”.

The alleged infringer is (the legal predecessor of) Certhon Build B.V. (“Certhon”), a company that is engaged in the construction of greenhouses as well as the installation of heating and air handling equipment, in particular for horticulture. According the Plantlab, Certhon – inter alia – has infringed Plantlab’s patent rights with respect to NL 091 and EP 814. Certhon raises an invalidity defense and requests the nullity of NL 019 in a (separate) counteraction.

Certhon contests the infringement by claiming the invalidity on the basis of insufficiency, lack of novelty, and lack of inventive step. In addition, Certhon’s cultivation space did not include all the features of NL 091 and EP 814; no root temperature control agents or blade heating agents were used (according to Certhon). Although the infringement case and the nullity case are formally different docket matters, the Court handles both matter simultaneously, starting with the assessment of the validity.

Assessment Court

The District Court of The Hague holds that the skilled person should be a team of a professional grower and plant builder. Since, NL 091 contains for all the (control) means mentioned in the claims concrete embodiments that enable such skilled person to reproduce the invention. The patent thus meets the requirement of sufficient disclosure.

Furthermore, the Court rules that the patent is novel because according to Figure 1 of NL 091, the blade heating means shown therein NL 091 shown as separate lamps, in addition to lighting means. As leaf heating means according to the patent, therefore, only means can apply which have direct exchange or otherwise direct heat-exchanging contact with the leaf of the crop, with which the leaf temperature can be controlled separately from the other growth factors. The documents from the state of the art presented by Certhon do not disclose such means, therefore claim 1 is novel.

However, the Courts finds NL 091 obvious over an article in the Dutch journal “Onder Glas” published in September 2008. In this prior art document, all the features of claim 1 are disclosed, with the exception of the blade heating means in the sense of the patent.

The Court holds that the skilled person is familiar with the three main factors that are important for good crop development (photosynthesis, upward sap flow and carbonic ash assimilation). The skilled person would know that the temperature difference between the crop and roots plays an important role for the complex interplay of root pressure, evaporation, nutrient absorption and photosynthesis. Since the “Onder Glas” article shows that root temperature can be controlled with cooling lamellae and that substantial quality improvements and production increases are achieved as a result, it is obvious that the skilled person will focus further on the leaf temperature. The skilled person will therefore look for possibilities to influence and control the leaf temperature separately, just as has been achieved with the root temperature. The step to blade heating means is thus made quickly and without inventive step, since it is not in dispute that suitable means, such as infrared heaters, were already disclosed in the prior art.

Apart from the blade heating means, all the features of claim have already been disclosed in the prior art (in particular professional journals). After reading these professional journals, the skilled person would have come up with the use of leaf heating agents within the meaning of the patent without inventive step. This affects all claims, including Plantlab’s auxiliary requests.

For this reason, the District Court of The Hague annuls NL 091 and rules that Certhon’s nullity defense regarding EP 814 succeeds, since EP 814 is almost identical to NL 091. In an obiter dictum, the Court rules that Certhon did not infringe at all; the cultivation device constructed by Certhon does not contain any leaf heating means which are capable and adapted to impose an environmental temperature deviating leaf temperature on the leaf of the crop, as described in claim 1 of NL 091.

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

Headnote: Jeroen Boelens, NautaDutilh