Together with Germany, the United Kingdom and France, the Netherlands is one of the most popular European venues for patent litigation. Although the Netherlands is only a small European country of around 17 million people, the Dutch market is important for many multinationals, as an entrance gate to Europe from which their products are distributed to other European countries. Getting an injunction in the Netherlands could, therefore ,effectively block the European distribution of an infringing product.
Another important reason why the Netherlands is considered a good venue for patent litigation is that there is a specialist patents court in The Hague, which has exclusive jurisdiction to pass judgment in patent infringement and invalidity cases. Dutch patent judges are experienced, and the majority of the judges also started their careers in private practice as intellectual property lawyers. Some even have a technical background or were experienced patent litigators or patent attorneys before they moved to the bench.
This year's patent litigation landscape is dominated by cross-border biotech and electronics/telecom cases. There are currently big-ticket patent litigation proceedings ongoing in these two technical fields, which are expected to lead to (appeal) judgments in the coming year. It is estimated that every year around 60 judgments are rendered in patent cases. The majority of these cases are smaller cases in the field of mechanics, but in recent years the complicated cross-border patent cases have increased considerably. Since there is no bifurcation in the Netherlands, it is also safe to assume that in almost all of these cases the validity of the patent or patents in suit was also disputed, which makes the judgments in these cases of higher value for other jurisdictions as well.
Several years ago, the patents court adopted an accelerated regime for patent cases that should lead to a judgment on infringement, non-infringement and validity in 12 months. This accelerated regime is always under amendment to accommodate swift but balanced patent litigation for all parties. However, owing to a heavy workload the patents court is now very busy and this has led to severe delays in passing judgments. The patents court is doing everything in their power to find a solution to deal with the workload, for instance, by recruiting newly qualified judges with expertise in the field of intellectual property.
Finally, a specific trend in the past years patent litigation is that there were several very important judgments on scope of protection.2
II TYPES OF PATENT
There are several ways to obtain patent protection in the Netherlands, of which filing a patent application with the Dutch Patent Office is the first. Second, the protection of patents in the Netherlands can ensue from a European application before the European Patent Office (EPO). In addition, the Netherlands is a member of the Patent Cooperation Treaty (PCT). Whether it be via a national application or an international treaty (European Patent Convention (EPC) or PCT), a patent that is issued for the region of the Netherlands will be governed by the Dutch Patents Act (DPA).
i National Dutch patent application
National Dutch patents are granted through a patent application procedure before the Dutch Patent Office. Several requirements must be met before patent protection is granted: the invention must be novel, must involve an inventive step and must be capable of industrial application. The term 'unexamined' is often used when referring to Dutch national patents. Even though patent application procedures always involve a search into the prior art (national or international, depending on the choice of the applicant), the actual grant of the Dutch national patent will not be affected by the results of such a search. Hence, the results of the search into documents that destroy novelty or are prejudicial to inventive step never prevent applications for Dutch national patents from being granted. The underlying idea is that this would allow smaller companies to obtain patent protection as it limits prosecution costs. Subsequent enforcement proceedings will then address the issue of the patent's validity.
ii European patents
A European patent will be valid in the Netherlands once the corresponding patent application that designates the Netherlands is granted. The rules of the DPA will govern the Dutch part of that European patent. The DPA distinguishes, in some respects, between Dutch patents granted via a European application and those granted following a Dutch national application. The distinction in their respective treatments relates primarily to the unexamined nature of Dutch national patents. However, the remedies are the same for both types of patents.
Most of the patents valid in the Netherlands are issued following application procedures with either the EPC or the PCT.
iii Obtaining protection
The Dutch Patents Act provides that patent protection can be obtained for inventions that meet three conditions: they must be new, must involve an inventive step and must be capable of industrial application. In addition, the invention has to be sufficiently disclosed in the patent and needs to be described clearly therein. These requirements reflect those stated in the EPC. As is the case in the EPC, certain subjects are not considered to be inventions under the Dutch Patents Act. These subjects include scientific theories and mathematical methods, aesthetical shapes, computer programs and business methods. The DPA also describes inventions that cannot be patented, such as the human body in the various stages of development, and the discovery of parts of it that include sequences or partial sequences of the genome, plants and animal races, methods that are predominantly biological in nature and methods for the treatment of the human or animal body. To be more specific, the DPA provides that certain methods would be contrary to public policy and, therefore, cannot be patented. Such methods include human cloning, methods whereby the genetic identity of humans can be changed, using human embryos, methods changing the genetic identity of animals that would cause suffering without any medical use, and methods that could damage the health of humans, animals or plants or lead to significant damage to the environment.
In the Netherlands, patent protection can be obtained by filing a patent application with the Dutch Patent Office. After 18 months have passed since the date on which the application was filed, the application will be recorded in the patent register at the earliest opportunity. The patent application is made public at that time. The patentee will then have to apply for a novelty search within a period of 13 months after the filing or the priority date. While the search may bring to light documents that could destroy the novelty of the invention or be prejudicial to its inventive step, the results of the search have no impact on the actual grant of the patent. The patent will be registered at least two months after the publication of the search and is thereby granted, affording it a protection period of 20 years. After learning the results of the novelty search, the patentee can amend the patent application if need be.
While Dutch national patents are not examined per se, the validity of the patent will become the issue at the heart of any enforcement action initiated by the patentee.
It bears noting that most of the patents enforced in the Netherlands are actually Dutch parts of European patents that have been issued by the EPO after a thorough examination of the European patent application.
The wording of the patent claims determines the scope of protection of a Dutch patent. Such patent claims must be interpreted in light of the descriptions and the drawings accompanying the patent. In Dutch case law, reference is often made to Article 69 EPC and the protocol belonging thereto.3 In some cases, the prosecution file may carry relevance for the scope of protection of patents in the Netherlands.
III PROCEDURE IN PATENT ENFORCEMENT AND INVALIDITY ACTIONS
In the Netherlands, patents can be enforced through the regular system of civil proceedings. The EU Enforcement Directive (No. 2004/48) has been implemented in the Dutch Code for Civil Procedure (DCCP), which includes such measures as ex parte injunctions, seizure of evidence and full cost orders for losing parties.
Typically, the Dutch enforcement of a patent starts with a letter to the alleged infringer, stating the details of the infringement, the patent that is invoked and the steps that the infringer is requested to take. If no settlement is reached, the patentee will typically start preliminary injunction proceedings or proceedings on the merits.
The majority of all Dutch patent cases are brought before the district court in The Hague, since this court has exclusive jurisdiction to hear all patent infringement and invalidity cases. However, some patent disputes start with pretrial measures such as a seizure that does not fall within the exclusive jurisdiction of the court of The Hague, but in practice other courts will request assistance of the The Hague judges to render a decision in these cases.
i Requirements for jurisdiction and venue
If the defendant has its place of business in the Netherlands, or if the actual patent infringement takes place on Dutch territory, Dutch courts can assume international jurisdiction to take cognisance of disputes. Once international jurisdiction has been established, to the extent necessary, the jurisdiction of the relevant district court is determined in much the same way. The court of the district in which the defendant has its office, or in which the infringement actually takes place, will have local jurisdiction. These rules allow the possibility of multiple district courts having jurisdiction within the Netherlands. However, as already mentioned above, relating to patent infringement and the validity of patents, exclusive jurisdiction lies with the district court in The Hague.
ii Obtaining relevant evidence of infringement and discovery
Dutch procedural law does not provide for a general concept of discovery or disclosure of documents. In principle, the parties are free to collect the evidence that they require in the proceedings and the Dutch courts are free to weigh that evidence as they deem appropriate.
The implementation of the Enforcement Directive has led to the implementation of certain possibilities to seize and safeguard information into the DCCP. These rules allow the patentee to request the district court in preliminary relief proceedings to grant permission to seize evidence that is in the possession or under the control of the infringer. The preliminary relief judge will assess such requests for permission, mostly on an ex parte basis. The requests must explain and elaborate why a legitimate fear of infringement exists. After permission for a seizure has been granted, the patentee may direct a bailiff to inspect the premises of the infringer. Accordingly, the bailiff will do so with the help of the necessary experts, such as IT specialists or technical experts. Any information collected by the bailiff will not, however, be handed over to the patentee directly. The information will initially be held by a custodian who has been appointed for this purpose when the leave for seizure was granted. The patentee will then have to institute separate proceedings, requesting the court for disclosure of the relevant documents that were seized. The patentee will not be able to access the seized documents until the court grants the request for such disclosure.
iii Trial decision-maker
The court of The Hague employs specialised judges to adjudicate patent cases, all of whom are seasoned experts. Some of the specialised patent judges on this court's payroll can boast technical acumen as well. Proceedings on the merits are typically heard by a three-judge division. Preliminary relief proceedings, in which patentees have an urgent interest in relief, are adjudicated by a single judge, who is referred to as the preliminary relief judge.
Although the procedural rules that apply in the Netherlands allow courts to appoint independent experts who specialise in a particular technical field or to request the parties to produce additional evidence to support the facts they are relying on, parties rarely ask for such an appointment. Instead, in patent cases, the parties to the proceedings are usually assisted by technical experts of their own choosing, who will file written expert statements on behalf of the party that engaged them. These experts often show up at the hearing as well.
The examination and cross-examination of party witnesses, be they experts or not, has no place in the proceedings, as litigation advances primarily through the exchange of written briefs (see further below).
iv Structure of the trial
Dutch proceedings on the merits are conducted mainly by the exchange of written briefs in which the parties set out their arguments and defences. This exchange is often followed by a court hearing during which the parties will have the opportunity to present further arguments. Proceedings are initiated with a writ of summons, in which the claimant describes the patent that it invokes, the infringement against which the action is brought, and the relief that is requested. In setting out the particulars of the case, the claimant has to be as complete as possible. Also, the claimant is required to substantiate its claims in the writ of summons with evidence. Writs of summons in patent cases typically provide a technical background to the technical field at the heart of the dispute.
Being served a writ of summons, the defendant will be given the opportunity to file a statement of defence. This statement of defence enables the defendant to raise defences and file exhibits that support its position. With the statement of defence, the defendant can furthermore avail itself of the opportunity to bring a counterclaim against the claimant. It can do so, for example, to claim the invalidity of the patent in question. The course of events to follow hinges on the proceedings themselves. The court will either schedule a hearing after the statement of defence, and after the claimant has had the opportunity to respond to the counterclaim, or it will allow the parties to continue the exchange of written arguments, after which a court hearing usually follows.
During the hearing, the parties will be able to argue their case before the court. Court sessions in patent cases generally last around four or five hours. The court may take longer to hear the parties if the complexity of the patent matter at hand merits it. For reasons of judicial efficiency, however, Dutch courts do not allow full elaboration on every single part of the arguments exchanged between the parties, thereby preventing needless repetition of what has already been argued in the written statements.
Patent cases in which the validity of a patent is challenged offer the patentee the opportunity to file auxiliary requests. Pursuant to such requests, the court may decide to uphold the patent in its present form or in amended form.
In the Netherlands, evidence in proceedings is usually presented by the production of documents. Similarly, witness testimony is usually produced by filing written statements. District courts have to schedule separate sessions if they want to hear witnesses. While this is certainly an option, it rarely happens in patent cases.
In their adjudication of patent cases, the Dutch courts will interpret the claims in conformity with Article 69 of the EPC and the protocol belonging thereto. Dutch case law provides a number of criteria applicable to that Article (see above). Besides literal infringement, the Dutch courts can also establish infringement by equivalence.
In consonance with Supreme Court case law, the patentee's actions during the patent's prosecution can be a relevant factor in the assessment of the scope of patent protection.
vi Time to first-level decision
In general patent cases, proceedings on the merits usually take around 12–16 months from the moment that the writ initiating the proceedings is filed until the court renders a decision in the first instance. The Court of The Hague has established an accelerated regime for patent cases, which is known as the 'VRO-regime'. This regime can be used for (non)-infringement claims and revocation actions. On the basis of this regime, the dates on which the substantive documents must be filed and on which the hearing will take place are set out in a fixed schedule before the proceedings are set to commence. Because the parties are bound to this schedule, a first-instance decision can typically be handed down within 12 months from the date on which the writ of summons is filed. Decisions in preliminary relief proceedings can be rendered within a few weeks, and even sooner in cases of extreme urgency.
In cases involving a manifest infringement, causing irreparable harm to the rights holder, the Dutch system also allows for an ex parte injunction. Injunctions such as these can be issued without hearing the defendant, and can be obtained in days.
vii Protective letters
In the Netherlands it is not common practice to protect against ex parte preliminary relief by filing protective letters. The only court that facilitates the filing of protective letters is the court of The Hague. Although this court is the exclusive court for patent infringement and invalidity cases, seizure requests do not fall within this exclusive jurisdiction of this court and are, therefore, filed with other district courts that do not hold a register for such letters. If such a court involves a judge from the The Hague court – which is allowed, but certainly not mandatory under Dutch procedural law – this judge will most probably check the The Hague register of protective letters.
A protective letter does not protect against an ex parte request per se, but the judge will weigh these counter-arguments in his or her decision-making process. The preliminary relief judge could also decide to hear the alleged infringing party before he or she decides upon the request, but only after he or she gave the opportunity to the patentee to withdraw the request. It is also possible that the judge will only grant the ex parte preliminary relief under certain additional conditions to safeguard the interests of the alleged infringer, for instance by obliging the patentee to file a bond, a deposit or some sort of other monetary guarantee.
viii Liability for enforcing a patent
Under Dutch law, it is, in principle, possible to exercise patent rights against alleged infringers, even when these infringement claims are later dismissed by a court. A patentee cannot be found liable in such cases. The only exception is when the patentee should have reasonably known at the time he or she enforced the patent against alleged infringers, often by way of a warning letter or summons, that the patent was invalid or not infringed. For instance, if he or she already knew of certain prior art that would invalidate his or her patent, enforcing the patent anyway would be regarded as an unlawful against the alleged infringer.
Enforcing an injunction or other relief granted by the court against an infringer can also amount to liability of the patentee if a (higher) court later (in appeal) lifts the injunction or the relief and rules in favour of the alleged infringer.
Sending warning letters to, inter alia, customers or trading partners of an alleged infringer is often considered as an unlawful act against the alleged infringer, albeit based on general tort law, unfair competition or misleading advertising, if the infringement claims are later dismissed in court. In those cases, the court often orders a patentee to cease and desist from making the unfounded allegations and send a rectification letter to all parties that have received the warning letter.
In the majority of patent cases, the court fees in the Netherlands are very low compared to other countries, and are therefore not a cost factor to take into account before initiating a patent case in the Netherlands. The only significant costs are those of the lawyers, supporting patent attorney, experts and translations. The fees of the lawyers will be the highest cost factor to consider. Although it highly depends on, inter alia, the complexity of the case and the technology involved and the amount of patents invoked, the lawyers' fees involved with patent cases will generally be €75,000–€250,000. The costs of a patent attorney offering trial support is often a smaller percentage of the lawyer's fees – often around 20–25 per cent.
The cost regime in patent cases often accounts for a full compensation of all costs involved (such as lawyer's fees, patent attorney's fees, expert costs, translation costs, etc). This means that the losing party is ordered to pay the costs of the prevailing party. If the costs for which compensation has been requested are not reasonable and fair in light of the complexity of the case, it is possible to raise a substantiated objection against these costs. However, in many patent cases parties reach a cost agreement before the oral hearing, which the court will accordingly execute in its final judgment.
IV SUBSTANTIVE LAW
This section provides an analysis of the main substantive law aspects relating to patent infringement and validity in the Netherlands, referring wherever possible to recent noteworthy developments in the legislation, case law or court practice.
In the Netherlands, there are two types of infringement. Article 53 of the Dutch Patent Act deals with direct infringement (which can be literal infringement or infringement by way of equivalence). The patentee has the exclusive right to:
- make, use, put on the market or resell, hire out or deliver the patented product, or otherwise utilise it as part of his or her business, or to offer, import or stock it for any of those purposes; or
- use the patented process in or for his or her business or to use, put on the market, or resell, hire out or deliver the product obtained directly as a result of the use of the patented process, or otherwise utilise it as part of his or her business, or to offer, import or stock it for any of those purposes.
Article 73 of the Dutch Patent Act also forbids indirect or contributory infringement. The patentee may institute the claims at his or her disposal in enforcing his or her patent against any person who, in the Netherlands or Netherlands Antilles offers or delivers, in or for his or her business, means relating to an essential element of the invention for the application of the patented invention in the Netherlands or Netherlands Antilles, to persons other than those who are entitled to apply the patented invention (for instance by way of a licence), provided that that person knows, or that it is evident considering the circumstances, that those means are suitable and intended for that application. However, if the means delivered or offered are products that are generally available in commerce, there will be not contributory infringement.
It is possible under certain conditions to also hold liable other persons (e.g., directors of infringing companies, foreign suppliers, accessories, etc) involved with the infringement, but this is dealt with under the general law of tort. This is, however, not common practice in Dutch patent cases.
ii Invalidity and other defences
In patent infringement proceedings, the most important defences are those directed at the invalidity of the patent. The district court can deal with these defences in the same proceedings that involve the actual infringement. In preliminary relief proceedings, the preliminary relief court will make a provisional assessment of the validity of the patent in question. Although the right cannot be invalidated for the Netherlands in these proceedings, infringement claims will be denied if the court considers it likely that the patent will be found invalid in proceedings on the merits. Claims on the grounds of inequitable conduct or similar defences are not recognised within the Dutch system.
In patent cases, the validity of patents can be challenged on account of non-patentable subject matter (inter alia, lack of novelty or inventive step), insufficiently of disclosure (lack of enablement), and extension of subject matter beyond the content of the application as originally filed (added matter). This can be done in much the same way such challenges would be lodged with the European Patent Office.
The Dutch court also recognises a Gilette defence, which is a 'hybrid' defence between an inventive step defence and an infringement defence. If an alleged infringer applies a product or a process that was already known in the prior art, or an obvious variant thereof, it cannot be an infringement or otherwise the patent would be invalid as not novel or not inventive.4
The court accepts the 'problem-solution approach' as a test to substantiate an inventive step defence. However, the court also recognises that the 'problem-solution approach' is only a test and that is not mandatory to apply it. In the end, the only real test is whether or not a defendant is able to substantiate the obviousness of an invention, and he or she can do so with all evidence available as long as he or she shows that the evidence is not tainted with hindsight.5
Other defences against infringement can be that there is a licence in place, exhaustion of patent rights, other competition law defences, such as a FRAND defence, or experimental use exceptions. Lack of knowledge is never a defence against infringement. It could, however, be a relevant defence against a damages claim.
V FINAL REMEDIES FOR INFRINGEMENT
Remedies that are most often sought in Dutch patent cases are:
- accountability relating to the trade and infringing products (prices, quantity of products, customers, suppliers, etc);
- destruction of the products;
- damages or the surrender of profits; and
- compensation of legal fees.
The above-mentioned remedies are easily obtained by a patentee if infringement has been found by the court. In practice it does not require any further substantiation, although in theory a defendant could argue for all remedies, except for the injunction and the damages or surrendering of profits that are always 'automatically' granted in the Netherlands, that there is a lack of interest. The defendant will then have to substantiate these arguments to convince the court of this alleged lack of interest, because in practice a court will automatically grant these remedies if requested as it follows from the Dutch Patent Act and DCCP that a patentee is entitled to these remedies as well in case of infringement.
A rectification can also be requested as an additional remedy, but if disputed the patentee has to show its legal interest in why a rectification letter is required.
As already mentioned, in the Netherlands, the court will always grant an injunction if infringement has been found. The wording of the injunction consists of general terms – inter alia, 'the defendant is ordered to cease and desist infringement of the patent in suit', on pain of a penalty sum. The duration of the injunction is indefinite and will last until it has been lifted in appeal or in proceedings on the merits (in case of preliminary injunction). If the injunction is not lifted, it will last until the patent expires, unless the parties reach an agreement.
The territorial scope of an injunction is typically only for the Netherlands. However, the Dutch patent court has shown that it is not reluctant to grant cross-border injunctions in preliminary injunction proceedings. In theory, a cross-border injunction is also available in proceedings on the merits, but in practice this does not really work because the court will then have to stay the proceedings until a decision on the validity of the patent has been rendered in the other countries for which an injunction was sought. In practice, this would lead to an almost indefinite stay of the infringement case for those countries.
Relief by the court will typically be granted notwithstanding appeal, meaning that the decision will be enforceable immediately once it has been served on the defendant and before a decision on appeal is available. If the first-instance decision should be set aside on appeal, the party enforcing the first-instance decision will generally be liable to bear the damage it thereby causes.
VI OTHER TYPES OF PATENT PROCEEDING
Except for patent proceedings relating to infringement or invalidity, it is also possible to start proceedings in the Netherlands for, inter alia, declarations of non-infringement, a compulsory licence and challenges of ownership of a patent. A special trend in biotech cases seems to be asking for an Arrow declaration, which under certain conditions is possible in the Netherlands. An Arrow declaration is a declaratory judgment of the court that a certain product was already known in the prior art. This offers the opportunity to a party to already acquire more certainty about the infringing nature of its own product before entering the market, even though the patents of the patentee are not (all) granted in their final form yet.
Criminal court proceedings cannot be initiated by a civil party. Only the Public Prosecution Service can start criminal proceedings. If the OM decide not prosecute an infringer, the patentee, if he or she has filed a criminal complaint, could start an 'Article 12 of the Dutch Code of Criminal Procedure' procedure before the competent Court of Appeal. In practice, however, patent infringement in the Netherlands is rarely dealt with in criminal proceedings.
Dutch law provides that decisions in the first instance are open to appeal. The Court of Appeal in The Hague has exclusive jurisdiction to hear appeals of patent cases. Under the Dutch system, appeals are de novo. The Court of Appeal has complete jurisdiction to decide on both the main claim (e.g., infringement) and the counterclaim (invalidity or revocation), subject to the parts of the decision that the parties take issue with. In such appeal proceedings, parties are free to adopt new positions and adduce new evidence.
As is the case in first-instance proceedings, most proceedings are conducted through the exchange of written briefs between the parties, after which the case will be heard by the Court of Appeal. Defendants on appeal also have the opportunity to file a counter-appeal, in which they can advance their own grievances to the decision rendered in the first instance. Appeal cases are typically handled by a panel of three judges, taking anywhere between 16 and 20 months from the moment the appeal is filed until an appeal decision is reached.
It is difficult to predict the likelihood of overturning a decision. As appeals are de novo, one could argue that a party has the same chance of overturning the decision as he or she had winning the first-instance case. However, since the first-instance court is also a very experienced court, one could also assume that to win in appeal a new line of reasoning, or at least a different emphasis on the arguments as brought forward in first instance, will be required to be successful in appeal. However, in almost all bigger patent litigation cases, the losing parties files an appeal against the decision in first instance, and these appeals are regularly successful.
The costs of an appeal are quite similar to the costs in first instance. In 2017, the appeal court fee for the majority of the patent cases is only €717. Depending on, inter alia, the complexity of the technology, the facts of the case, the amount of patents in suit and pretrial remedies sought, lawyers' fees are around €75,000–€250,000.
VIII THE YEAR IN REVIEW
This year the higher Dutch courts issued several important judgments on scope of protection (see final paragraph above under Section I). I believe that since these judgments there is much more room for protection of equivalents than there was the past 10 years. The case law – also the case law of the Supreme Court – had become very strict and hardly left any room for broader interpretation of claims if, for example, during prosecution the patentee was forced to delete certain wording covering the equivalent due to added matter6 or if a technical variant was disclosed in the specification but not claimed (disclosed but not claimed, is disclaimed).7 Maybe inspired by the turnaround in English case law (following the Pemetrexed case of the Supreme Court in the UK of 7 July 2017), the Dutch courts now seem to allow a broader scope of protection, based on the same 'contextual interpretation of patent claims' which was already in use for many years, for protecting equivalents. It was, for instance, ruled that a limitation of the claims (and related adjustments to the description) made during the grant procedure, on the instruction of the Examiner, owing to an objection based on added matter, does not preclude that a patent holder relies on the application of Article 2 of the Protocol (equivalence) when determining the scope of protection of patent claims.8 Also, a general rule that relying on equivalence is not possible, unless it concerns variants that on the priority date were not foreseeable by the skilled person, is now explicitly rejected by a higher Dutch court.9
In the Rosuvastatin case the Supreme Court10 upheld a decision of the The Hague Court of Appeal in which a salt, which was not mentioned in the list of salts mentioned in the description was ruled an infringement of the claim feature 'pharmaceutically acceptable salts'. The defendant had argued that the claims had to be interpreted in a strict sense, because there was a list of salts included in the description. By doing that the patentee had – according to the defendant – restricted the claim feature 'pharmaceutically acceptable salts' to only those salts mentioned in the list. The Court of Appeal rejected that interpretation of the claims as too strict and not in line with Article 69 and its Protocol. According to the Supreme Court, the Court of Appeal rightfully explained the patent claims in light of the common general knowledge of the average skilled person and, contrary to the complaints raised by the defendant, it did not only take into account the inventive idea as a point of view, but also took into account the contribution of rosuvastatin to the art, the meaning and function of the salt forms in the rosuvastatin composition to be administered to a patient and the fact that the case concerns a compound patent that provides for absolute protection. The Supreme Court therefore confirmed the decision of the Court of Appeal.
The hottest topic by far for Dutch patent law is the anticipated arrival of the Unitary Patent and the Unified Patent Court. This could potentially change or even disrupt the Dutch patent litigation landscape.
1 Wim Maas is a partner at Taylor Wessing NV.
2 Court of Appeal The Hague 8 May 2018, ECLI:NL:GHDHA:2018:1105 (Pemetrexed); Supreme Court 8 June 2018, ECLI:NL:HR:2018:854 (Rosuvastatin).
3 Aga v. Occlutech, Dutch Supreme Court, 25 May 2012, case number: ECLI:NL:HR:2012:BV3680.
4 Case example regarding the 'Gilette defence': Smart Technologies ULC v. CTouch Europe BV, District Court The Hague, 26 July 2017, case number: ECLI:NL:RBDHA:2017:8247.
5 Case examples regarding 'the problem-solution approach': Sandoz BV and Hexal AG v. Merck Sharp & Dohme Corp, Court of Appeal Gerechtshof's–Gravenhage, 1 May 2012, case number: ECLI:NL:GHSGR:2012:BW4600 and Sun v. Novartis (zoledronic acid), District Court of The Hague, 25 November 2015, citation number: ECLI:NL:RBDHA:2015:14337.
6 HR 5 February 2016, ECLI:NL:HR:2016:196 (Bayer/Sandoz).
7 HR 25 May2012, ECLI:NL:HR:2012:BV3680 (AGA/Occlutech).
8 Court of Appeal The Hague 8 May 2018, ECLI:NL:GHDHA:2018:1105 (Pemetrexed), r.o. 4.26
9 Court of Appeal The Hague 8 May 2018, ECLI:NL:GHDHA:2018:1105 (Pemetrexed), r.o. 4.35.
10 Supreme Court 8 June 2018, ECLI:NL:HR:2018:854 (Rosuvastatin).