In a decision of 21 November 2014, the Provisions Judge of the District Court of The Hague accepted cross-border competence in preliminary patent infringement proceedings against a Dutch entity and Chinese (co-)defendants. The facts of the case were as follows.

The French entity Rhodia took the position that the Dutch entity Buteressence and the Chinese entities Jiaxing, Ningbo and Wanglong infringed its European patent relating to a process for manufacturing vanillin. Rhodia alleged that the Chinese entities manufactured the vanillin in China according to the patented process. The Chinese entities allegedly sold and delivered the product obtained directly through the patented process (i.e. the vanillin) to Buteressence, which according to Rhodia constituted an infringement on the basis of Article 53(1)(b) Dutch Patent Act. In turn, Buteressence allegedly used the vanillin for the production of aromas. On the basis of these allegations, Rhodia claimed a cross-border injunction against both the Dutch entity and the Chinese entities.

…the claims against the Chinese entities were so closely connected to the claims against the Dutch entity that it would be expedient to hear and determine these together.

The judge accepted cross-border competence against all defendants. Competence with regard to the Dutch entity was based on Article 2 of the Brussels Regulation. The fact that Rhodia withdrew its claims against the Dutch entity at the start of the hearing did not prevent the judge from accepting jurisdiction. Regarding the Chinese entities, the judge considered that competence followed from Article 7 Dutch Code of Civil Procedure (the co-defendant rule), as the claims against the Chinese entities were so closely connected to the claims against the Dutch entity that it would be expedient to hear and determine these together. Within this context, the judge held that there was a same situation of fact and law. The judge considered that there was a same factual situation because Rhodia’s claims against all entities were based on the statements that:

  1. the manner in which the Chinese entities produced the vanillin allegedly fell within the scope of protection of Rhodia’s European process patent; and
  2. both the Dutch and the Chinese entities allegedly infringed the European patent because they traded in products directly obtained through the patented process in the countries where the European patent was in force.

With reference to the CJEU decision in Solvay/Honeywell of 12 July 2012 (C-616/10), the judge held that there was also a case of the same legal situation as Rhodia’s infringement claims pertained to the same national parts of the European patent for all defendants.

In line with established case law, the judge furthermore held that the invalidity defense raised by the defendants in relation to the foreign parts of the European patent had no effect on the judge’s cross-border competence in preliminary relief proceedings. The judge thus accepted cross-border competence against the Dutch and Chinese defendants. The judge ultimately however rejected the claimed cross-border injunction because he considered that there was a serious chance that Rhodia’s patent would be revoked in proceedings on the merits due to a lack of inventive step.

This is the first decision in the Netherlands where, in preliminary patent infringement proceedings, cross-border competence against a Dutch defendant and foreign co-defendants was accepted with reference to the CJEU decision in Solvay/Honeywell. The decision shows that judges in the Netherlands under certain circumstances, may be willing to grant cross-border injunctions against both Dutch and foreign entities.