Cases

What

Nutricia/Danone is an important player on the baby food market, and has an active patent policy in this field as well as lobbying activities. For several aspects of baby food, Nutricia obtained patents e.g. for a special prebiotic fiber composition in infant formula, as well as for a special vitamin composition suitable for e.g. incorporation in infant formula. The addition of these compositions is also preferred based on EU regulations.

The patented pre-biotic fibers functionally resemble the fibers found in breast milk and are potentially beneficial to the baby’s digestive and immune systems. But when the Dutch drugstore chain Kruidvat (a daughter of the multinational A.S. Watson company) introduced its own infant formula with pre-biotic carbon hydrate composition, Nutricia claimed it had violated its fiber patent. Kruidvat, which had been selling its own infant formula for some time, disputed the infringement claim. Nutricia also challenged Kruidvat with regard to infringement of her vitamin patent.

How

EP&C defended Kruidvat against Nutricia’s patent violation claims. Both before the Dutch courts and the European Patent Office the patent granted to Nutricia are being disputed. EP&C considered it highly doubtful whether the composition of pre-biotic fibers is new and inventive. Furthermore, the patent of Nutricia Danone encompassed much more prebiotic fibers than would have been reasonable in view of the experimental findings of Nutricia. The judge decided in both summary proceedings and in the subsequent appeal procedure to rule in favour of Kruidvat. Furthermore, the judge was of the opinion that there is a high chance that the fiber patent will be revoked by the European Patent Office. For that reason, the judge was not willing to grant any of Nutricia's infringement claims. Kruidvat is therefore free to continue to sell its infant formula. Kruidvat has also filed for nullification of the patent, but the judge in first instance proceedings did not follow. At the EPO in Munich Nutricia’s patent has been severely limited as it was considered that its claims were indeed too broad.

In order to avoid another infringement case in the Dutch court, EP&C recently opposed against Nutricia's vitamin patent, and it was successful. The patent has been revoked by the European Patent Office in Munich and an appeal is pending.

Attorneys: Robbert-Jan de Lang