Amycel v *** (CFI, 31 July 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

By order of 31 July 2024 (UPC_CFI_195/2024, ACT_23163/2024, ORD_44133/2024), The Hague Local Division granted the application for provisional measures by Amycel LLC, proprietor of EP 1 993 350 B2 on a hybrid brown button mushroom strain, against a Polish grower whose name is redacted. It prohibited the marketing of the « Cayene » strain in the Netherlands, Germany, France and Italy, ordered delivery up and disclosure of customers, and held that the exclusion in Art. 53(b) EPC does not cover mushroom strains. The order matters for patents on living matter and for proving infringement by genetic sequencing.

Facts and procedure

The patent, maintained in amended form after opposition (B2 published on 24 July 2019), has a single claim to Agaricus bisporus strain BR06 deposited with the ATCC (paragraph 8). Amycel learned of sales of Cayene in the Netherlands in late July 2023 and filed its application on 14 May 2024 (paragraphs 1 and 26). The defendant lodged an objection on 26 June 2024, its request for simultaneous interpretation into Polish (Rule 109.1 RoP) had been rejected on 25 June 2024 (paragraphs 3 and 7). On the eve of the hearing of 9 July 2024, it brought a revocation action before the Milan Central Division (UPC_CFI_403/2024) (paragraph 17). A technically qualified judge was added to the panel (paragraph 5).

The applicable law

Jurisdiction rests on Art. 32(1)(c) UPCA and Regulation (EU) No 1215/2012, the alleged infringement having taken place in the Netherlands (paragraph 22). The measures fall under Art. 62 UPCA and Rules 211 and 213 RoP. The division applies Art. 53(b) EPC and Rules 27 and 28 of its Implementing Regulations, and Art. 69 UPCA on costs.

Question

Is a mushroom strain excluded from patentability as a plant variety, and can infringement of a claim to a deposited strain be established through genetic identity measured by sequencing?

Decision

The proprietor did not delay: the time taken is explained by the genetic and morphological testing that the defendant’s stance made necessary, and sales in Poland, a non-Contracting State, are irrelevant (paragraphs 23 to 31). The novelty attacks fail for want of proof of disclosure before the priority date or of identity between the strains relied on and BR06 (paragraphs 32 to 34). The exclusion in Art. 53(b) EPC, to be construed narrowly, covers only plant and animal varieties. Fungi form a separate kingdom and are not excluded (paragraphs 35 to 39).

On infringement, the claim requires genetic identity with BR06. As sequencing never yields 100% identity, even between identical samples, identity is accepted from a similarity of 99.88%, Cayene meets that threshold under two methods, and the 723 variations reported by the defendant lie within the margin of error (paragraphs 42 to 46). Infringement is more likely than not, without reliance on the morphological data (paragraph 47). The injunction, limited to Cayene and to the four States where the patent is in force, is backed by penalty payments of up to EUR 50,000 and EUR 5,000 per day (paragraphs 49 and 50). The division awards EUR 11,000 as interim costs, limited to court fees, sets the value of the dispute and the security at EUR 200,000, and orders the defendant to bear the costs (paragraphs 54 to 57).

Key points for practice

• The plant variety exclusion in Art. 53(b) EPC does not extend to mushroom strains.
• Genetic identity with a deposited strain may be shown by sequencing, using a similarity threshold that allows for experimental error.
• Time spent on serious genetic testing before filing does not defeat urgency.
• Practical point: for a claim to deposited biological material, evidence from two consistent sequencing methods with a quantified error margin was enough at the provisional stage.

Provisions applied

Agreement on a Unified Patent Court

Arts. 25(a), 32(1)(c), 62, 69 and 73(2)(a)

Rules of Procedure

Rules 109.1, 211, 213.1, 350 and 354

European Patent Convention

Art. 53, Rules 27 and 28

Regulation (EU) No 1215/2012

Arts. 71a and 71b

Directive 2004/48/EC

Art. 8

Case law cited

10x Genomics v NanoString, Munich Local Division, 19 September 2023, 10x Genomics v NanoString, Court of Appeal, 26 February 2024, Mammut Sports Group v Ortovox Sportartikel, Düsseldorf Local Division, 9 April 2024, 10x Genomics v Curio Bioscience, Düsseldorf Local Division, 30 April 2024, Union des Associations Européennes de Football v Ballinno, Hamburg Local Division, 3 June 2024, EPO, Enlarged Board of Appeal, G 2/12, 25 March 2015

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.