A district court in Paris has dismissed a claim by Lohmann Tierzucht and Lohmann France for patent infringement and unfair competition against Novogen and six other poultry genetics organizations. The Lohmann firms, part of EW Group, is to appeal the court’s decision.
In a ruling made last month, the Paris Tribunal de Grande Instance revoked a number of claims of the French part of European patent EP 1 518 936 for lack of an inventive step. Accordingly, the Court dismissed the claims by the two Lohmann entities infringement and unfair competition.
Central to the dispute was a patent covering the use of marker assisted selection of chickens against fishy taint.
Fish taint is linked to a genetic abnormality that is found naturally in around 10 percent of hens laying brown-shelled eggs, and leads to a harmless but unpleasant off-odor in their eggs. The odor comes from a chemical, trimethylamine, which is produced by the birds when they digest feeds that include rapeseed meal.
Around 2003, primary breeders and universities in Europe identified the genetic mutation responsible for the genetic defect and subsequently, a marker assisted selection (MAS) technique has been developed to help eliminate the abnormality from primary breeding flocks.
According to Novogen, not only did the court dismiss Lohmann’s claims for infringement and unfair competition, it also noted Lohmann Tierzucht’s “willingness to harm Novogen’s organization (technical supplier, distributor, shareholder)” and held that Lohmann Tierzucht “misused the infringement seizures”, and that the “patent had only served as an excuse to search for other documents.”
While dismissing Novogen’s counterclaims for unfair competition, the Court considered that there was no evidence for the damage the firm claimed.
The Court awarded Novogen EUR100,000 (US$112,000) for unrecoverable costs, and various amounts to the other defendants.
In response to the court ruling, Lohmann Tierzucht said that the verdict has only limited relevance for its lawsuit against Novogen on the infringement of the patent. The decision covered only the validity of its patent, which had previously been recognized by the European Patent Office.
Lohmann Tierzucht has lodged an appeal against the verdict, and says it will pursue legal measures to prove the infringement of its patent.
In contrast to the Paris court decision, a French diagnostic firm has already agreed to the claimed infringement and paid a penalty fee in France under an amicable agreement, according to Dr. Rudolf Preisinger, Chief Technical Officer-Layers for EW Group.
