Plant-e Knowledge v Arkyne Technologies (CFI, 22 November 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In a decision of 22 November 2024 on the infringement action brought by Plant-e Knowledge and Plant-e and the counterclaim for revocation filed by Arkyne Technologies (“Bioo”) (UPC_CFI_239/2023, ACT_549536/2023 and CC_588768/2023), The Hague Local Division upheld EP 2 137 782, which concerns a microbial fuel cell fed by a living plant, and found method claim 11 infringed: by equivalence by the Bioo Panel and Bioo Bench, and literally by the Bioo Ed. The decision is of practical interest on two counts: it sets out a four-question test for equivalence, and it confirms that the Court may itself settle the wording of the recall letter to customers and of the notice to be posted on the infringer’s website.

Facts and procedure

Bioo, a Barcelona start-up, held a non-exclusive licence agreed on 3 August 2018, which it terminated with effect from 29 March 2019 (paragraphs 16 and 17). Plant-e sued for infringement of claim 11 and claims 12 to 16, Bioo counterclaimed for revocation. The language of the proceedings was changed from Dutch to English by an order of 4 October 2023. The oral hearing took place on 30 September 2024.

The applicable law

Validity was examined under Articles 54, 56, 83, 87, 123(2) and 138(1)(c) EPC. As the UPCA contains no provision on equivalence, the Division relied on Article 2 of the Protocol on the Interpretation of Article 69 EPC (paragraph 86). Remedies fell under Articles 25, 26, 63, 64, 67 and 80 UPCA, Article 64 being read in light of Article 10 of Directive 2004/48 (paragraphs 105 to 111).

Question

Does a device that places the plant and its roots in a compartment separate from the anode compartment, while allowing excreted organic matter to reach the anode, use the claimed method by equivalence, and may the Court prescribe the wording of recall measures?

Decision

The patent was valid: priority was validly claimed, there was no added matter, claim 11 was novel over Tender, inventive over every combination relied on since nothing prompted the addition of a living plant to a microbial fuel cell, and sufficiently disclosed (paragraphs 41 to 60). The Bioo Panel did not literally meet feature 11.6, as the roots were kept out of the anode compartment (paragraphs 82 to 84). For equivalence, absent any applicable source and as both parties proposed, the Division adopted a test drawn from national practice: technical equivalence, protection proportionate to the patentee’s contribution, legal certainty for third parties, and novelty and inventiveness of the accused embodiment (paragraph 88). All four were met: the plant supplied organic matter that reached the anode and the device worked in the same way, the additional compartment making no difference (paragraphs 89 to 101). Supplying the products to third parties was indirect infringement under Article 26 UPCA (paragraphs 102 and 103).

The Division granted an injunction for the Benelux, France, Germany and Italy, and ordered recall and destruction of products sold to professional customers, save those already planted in the ground, information and a notice on Bioo’s homepage for one month (paragraphs 105 to 111). It rejected the objection that Article 64 did not allow it to impose the wording of the recall letter: a text settled by the Court avoids ambiguous messages and makes the recall effective (paragraph 108). Penalty payments were capped at EUR 200,000, interim damages were reduced from EUR 100,000 to EUR 35,000, the final amount being left to separate proceedings, and costs were awarded against Bioo up to the ceilings (EUR 56,000 for the infringement action, EUR 112,000 for the counterclaim). The decision is enforceable without security (paragraphs 112 to 116).

Key points for practice

• The Hague Local Division applies a four-question equivalence test, the last of which allows the defendant to argue that its embodiment lacks novelty or inventive step over the prior art (paragraph 88).
• The quantitative debate over how much organic matter reached the anode was irrelevant: it was enough that it did (paragraph 92).
• The Court may settle the wording of the recall letter and of the website notice, under Article 64 UPCA read with Directive 2004/48 (paragraph 108).
• Practical point: a patentee should propose the wording of recall and publication measures in its statement of claim, as the Division adopted it with adjustments to the territorial scope of the injunction.

Provisions applied

Agreement on a Unified Patent Court

Arts. 20, 24, 25, 26, 34, 63, 64, 67, 69 and 80

Rules of Procedure

Rules 104, 105.5, 150.2, 190, 262.2, 323 and 370.6

European Patent Convention

Arts. 54, 56, 69, 83, 87, 123(2) and 138(1)(c), Protocol on the Interpretation of Article 69, Art. 2

Directive 2004/48/EC

Art. 10

Case law cited

Court of Appeal, 11 March 2024, NanoString v 10x Genomics, Munich Central Division, 16 July 2024, Sanofi v Amgen, The Hague Local Division, 18 June 2024, Abbott v Sibio (UPC_CFI_131/2024).

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.