Agribusiness: Nador Cott v Asda & Mutant Barley Plants

Plant breeders' rights (PBRs) and innovation in the agricultural sector are not often litigated in the courts. However, perhaps reflective of increasing innovation in the sector, two high-profile cases have recently put plants and agriculture into the legal limelight: Nador Cott Protection S.A.S. v Asda Stores Limited (2025 EWHC 941 (Pat)) and the European Patent Office (EPO) decision in T 2178/22 Mutant Barley Plants/CARLSBERG.

The Nadorcott Mandarins

In Nador Cott v Asda, the High Court ruled in relation to a dispute over the Nadorcott mandarin variety, protected by a UK PBR. A PBR is a type of intellectual property right that gives the holder exclusive control over the commercialisation of a new plant variety. Nador Cott Protection S.A.S. (NCP) alleged that Asda's sale of Tang Gold mandarins infringed its PBRs, claiming Tang Gold is a "dependent variety" derived from Nadorcott, such that any commercialisation by third parties would be deemed infringement under section 7(1) Plant Varieties Act 1997. Asda denied the infringement claims and made a separate application to the UK Plant Varieties Office (PVO) for a declaration that the Nadorcott PBR is null and void, challenging the validity of NCP's PBR on grounds of distinctiveness, novelty, and entitlement. Asda also made an application that the infringement proceedings be stayed, pending the outcome of the PVO's validity proceedings.

Mr Justice Mellor dismissed Asda's application to stay the infringement proceedings pending the validity application, allowing the case to proceed. For patents, an application for stay of infringement proceedings may be granted (applying the principles set out in IPCom v HTC [2013] EWCA Civ 1496) where difficulties may otherwise arise as a result of there being two available routes for invalidity action, through both EPO opposition and UK court proceedings. However, as there is only one route for invalidity proceedings for UK PBRs (through the PVO), Mr Justice Mellor emphasised that UK PBRs should be treated differently to patents and that he was "unpersuaded that there is any overlap of any significance, or any real risk of inconsistent decisions" and that the infringement action and the validity challenge must "proceed in parallel".

Being the first time that an English court has ruled on the whether a stay of PVR infringement proceedings should be granted pending the outcome of invalidity proceedings, the decision underscores the rarity of PBR litigation and the challenges of enforcing these rights in a competitive marketplace

Mutant Barley Plants

Meanwhile, the ongoing opposition against European Patent EP2373154, jointly owned by Carlsberg and Heineken, has drawn attention. The patent claims a method for preparing a barley-based beverage with reduced off-flavours, using a mutant barley plant with three specific mutations that eliminate various enzymes. The patent also has some independent claims covering the mutant barley plant itself, a malt composition, and the resulting beverage.

The opposition, led by organisations including "No Patents on Seeds!", argued that the patent violated Article 53(b) European Patent Convention (EPC), which excludes "plant or animal varieties or essentially biological processes for the production of plants or animals" from patentability. An earlier EPO decision (G2/12) clarified that animals and plants resulting from essentially biological processes did not fall under this exclusion, but rule 28(C) EPC later came into effect on 1 July 2017 to reverse this decision. However, in line with a previous ruling (G3/19), the opposition division determined that, as EP2373154 was filed before 1 July 2017, it was not subject to the stricter interpretation of rule 28(2) EPC and was therefore not excluded. The opposition division also ruled that the claimed subject matter was novel and inventive, rejecting the oppositions.

This decision was appealed as the opposition division had only provided explanation as to why claim 7 of the relevant patent was inventive, and not the other claims. The Board of Appeal remitted the case to the opposition division for reconsideration and we await the new ruling. As it stands patent protection remains available for plants produced by an essentially biological process provided the patent application was filed prior to 1 July 2017, meaning two systems of exclusions shall continue to apply as long as there are pending applications or granted patents that were filed prior to 1 July 2017. The test for any patents filed following 1 July 2017 has a negative impact on the allowability of product or process claims related to plants, such that if the claimed product is exclusively obtained by means of an essentially biological process or if the claimed process features define an essentially biological process, no patent protection will be available (G3/19).

This remains subject to change pending the outcome of any appeal to the new Mutant Barley Plants ruling. The decision will be watched closely, along with the outcome of the EU Commission's recent legislative proposals in relation to the legislative treatment of certain genetically modified plants generated using modern precision breeding methods (including the patentability of such plants), which is expected in due course.

The Takeaways

The Nador Cott v Asda and Mutant Barley Plants cases highlight the growing connection between intellectual property law and agri-innovation, underscoring the legal complexities that arise as technology and innovation continue to transform the sector. The High Court's decision in Nador Cott v Asda is significant as it sets a precedent for the procedural treatment of parallel PBR infringement proceedings and validity challenges that are running concurrently, providing a helpful comparison against patent proceedings of a similar nature.

Similarly, the EPO's decision in the Mutant Barley Plants case demonstrates the nuanced balance between patent protection and exclusions under the EPC. The ruling affirms that patents for plants derived from essentially biological processes remain valid if filed before 1 July 2017, though the ongoing appeal process leaves room for further developments. This case also highlights the broader debate surrounding the patentability of genetically modified and precision-bred plants, an issue that will likely gain traction as legislative and regulatory frameworks evolve.

Together, these decisions emphasise the critical role of intellectual property rights in fostering innovation in agribusiness, serving as a reminder for stakeholders to closely monitor legal developments in this area, as the outcomes will shape the future of agricultural innovation and commercialisation.