Update and correction: Court battle Lohmann vs Novogen

Lohmann’s CTO Dr Rudolf Preisinger responds: “With its verdict the court clearly contradicts the European Patent Office which has already recognised the validity of the patent officially by two decisions in the past. The Paris Court of Appeal will have the opportunity to rule again on this issue, as the decision of the Tribunal de Grande Instance has been suspended to date due to an appeal procedure initiated by Lohmann Tierzucht.”

Lohmann Tierzucht started the case in late 2014, after carrying out four ex-parte infringement seizures in order to demonstrate infringements of one of their patents. At that time Lohmann accused Novogen of using a patented technique to find a defective FMO3-gene that is the cause of eggs with a fishy taint smell. Preisinger: “We still think we have a case. Lohmann Tierzucht sees no reason to refrain from further pursuing legal measures to prove the infringement of its patent. From several historic samples of Novogen layers it can be confirmed that Novogen commercials were contaminated with a fishy taint like other commercial layers. Recent samples have confirmed that Novogen today is free from a fishy taint. However, such a significant change in a fishy taint in a short period of time can only be achieved with genomic selection – a process which is protected by the patent of Lohmann Tierzucht GmbH.”

Novogen states that their breeds didn’t carry the defect gene and that they used alternative measures, a so called artificial nose, to guarantee to keep the gene out in future breeding stock. As a consequence, Novogen claims it didn’t infringe a Lohmann patent which selects chicken against fishy tainted eggs and – as a further consequence – didn’t caused unfair competition.

In its current ruling the court noted that Lohmann Tierzucht ‘misused the infringement seizures’ and that the ‘patent case only served as an excuse to search for other documents at Novogen’. Nevertheless, the court dismissed Novogen’s counterclaims for unfair competition, considering that Novogen’s damage was not sustained by evidence.

However, the court did award Novogen a sum of €100,000 for unrecoverable cost, to be paid by Lohmann Tierzucht. Preisinger: “We would like to stress that all counterclaims for abusive procedure brought by Novogen were dismissed by the Tribunal de Grande Instance and none of the proceedings of the preservation of evidences have been cancelled. Only the reimbursement of part of the legal fees was ordered by the Tribunal de Grande Instance. This order is, however, also not enforceable and suspended pending the appeal decision. We are further assured that our lawsuit will be successful as we already reached a settlement at court with another defendant in the same matter. With the agreed payment to Lohmann Tierzucht the defendant acknowledged the infringement of our patent.”