On 24 August 2011, the District Court of The Hague granted Apple a cross-border injunction blocking sales of smart-phones produced by Samsung's Dutch companies on the basis of a single European patent.
Although European patents are reviewed by the European Patent Office, once granted they are treated as national rights and have to be enforced in the courts in each country.
The Dutch courts used to argue that they were able to grant cross-border injunctions in proceedings on the merits where the parties and the facts in a dispute were the same in different countries. The ECJ put an end to this practice in 2006 in the GAT v. LuK and Roche v. Primus decisions.
According to the ECJ, article 22-4 of the Brussels Regulation which provides for exclusive national jurisdiction regarding the validity of patents and other registered rights applies to all proceedings relating to the validity of a patent, irrespective of whether the issue is raised by way of an action or plea in objection. As a result, the jurisdiction of the national courts is limited to decisions with regard to the national territory.
On 27 June 2011, Apple launched summary proceedings against Samsung arguing that three models of Samsung Galaxy smart phones and three models of Samsung Galaxy tablet PCs infringed Apple’s patents, Community Design rights and copyrights. Apple claimed a cross-border injunction against the Dutch Samsung entities.
On 24 August 2011, the Judge of the District Court of The Hague rendered a decision. The Judge considered that, even though the ECJ closed the door on cross-border injunctions for proceedings on the merits, there was still a case for granting cross-border injunctions in summary or preliminary proceedings.
The Judge noted that questions on this issue were referred to the ECJ in a dispute between Solvay and Honeywell in 2010. However, according to the Judge, as long as the ECJ has not ruled otherwise, in summary proceedings cross-border injunctions can be issued even if an invalidity defence has been raised.
Until the ECJ rules otherwise, it can be expected that the Dutch courts will continue to issue cross-border provisional injunctions against defendants residing in the Netherlands.