1. What are the most effective ways for a European patent holder whose rights cover your jurisdiction to enforce its rights in your jurisdiction?
In the Netherlands, an effective system of short notice proceedings is in place which makes it possible to obtain an injunction within four to eight weeks. Under the EU IP Enforcement Directive (2004/48/EC), the option to obtain an ex parte injunction was introduced into the Dutch legal system. However, short notice proceedings and ex parte proceedings are relatively rare with regard to patent infringements in comparison with the enforcement of other IP rights, due to the complexity of most patent cases. Another reason for this may be that the District Court of the Hague provides for accelerated proceedings on the merits of the case (the ‘VRO regime’) in patent infringements. This procedure follows a pre-set schedule. Although this procedure has some limitations, it is highly effective because it normally leads to a verdict within one year. In a VRO regime, the plaintiff must be aware that all the grounds for the claim, together with the evidence supporting it, must be presented to the defendant on the date when the case is introduced in court.
2. What level of expertise can a patent owner expect from the courts in your jurisdiction?
All patent cases are dealt with at first instance by a specialised chamber of the District Court of the Hague. The level of expertise of the judges is therefore high. Judgments of the District Court of the Hague can be appealed to the Court of Appeal of the Hague (together, ‘the Hague patent courts’). After the appeal proceedings, appeal on cassation may be instituted with the Dutch Supreme Court, but only with regard to issues of law.
3. How do your country’s courts deal with validity and infringement? Are they handled together or separately?
Dutch courts are competent to deal with validity and infringement together. In practice, in most patent infringement cases the defendant will invoke the validity of the patent involved as a counterclaim.
4. To what extent is cross-examination of witnesses permitted during proceedings?
In the Netherlands, it is possible to file a request to initiate witness examinations before the start of legal proceedings. Crossexamination is possible in standard proceedings on the merits of the case. In short notice proceedings, cross-examination is not possible.
5. What role can and do expert witnesses play in proceedings?
Similar to the witness examinations, it is possible to file a request to obtain an opinion of an expert appointed by the court before the start of legal proceedings. During the proceedings experts can be heard on the initiative of the court and on the request of the parties. These can be experts appointed by the courts, or an expert testifying on behalf of a party. In accelerated proceedings on the merits of the case there is only limited room for hearing experts (testifying on behalf of a party) during the scheduled pleadings.
6. Is pre-trial discovery permitted? If so, to what extent?
Since the implementation of the Enforcement Directive the court can allow preliminary measures to preserve relevant evidence in respect of the alleged infringement, subject to the protection of confidential information. Such measures may include detailed description, with or without the taking of samples, or physical seizure of the infringing goods, and, in appropriate cases, the materials and tools used in the production and/or distribution of these goods and the documents relating thereto. Normally these measures are taken without the allegedly infringing party being heard. However, the applicant will be given access to the obtained information or materials only after the other party has been heard by the court.
7. Do the courts in your jurisdiction apply a doctrine of equivalents?
Yes, Dutch courts apply the function way result test to assess whether an implementation of the invention should be considered equivalent.
8. Are certain patent rights (eg. those relating to business methods, software and biotechnology) more difficult to enforce than others?
Under the Dutch Patent Act 1995, two types of patent exist: traditional inventions and processes. In as far as inventions and processes qualify as patentable no difference exists in the scope of protection and enforceability. It should be noted that business matters and software as such are not patentable under the Patent Act.
9. How far are courts bound by previous decisions in cases that have covered similar issues?
The Dutch courts are not formally bound by previous decisions in cases which cover similar issues. However, all patent cases are dealt with at first instance by the District Court of the Hague and on appeal by the Court of Appeal of the Hague. Since the same courts deal with all patent litigation, it is highly unusual that similar issues are treated differently. Having said that, judges of the Hague patent courts regularly speak at conferences and expressed on these occasions that the Hague patent courts follows with great interest the developments in the UK and German patent courts.
10. Are there any restrictions on who parties can select to represent them in a dispute?
The Rules of Civil Procedure demand that both the plaintiff and the defendant are represented by a lawyer admitted to the Bar. Given the often technical nature of patent litigation the lawyers are usually assisted by patent agents who have a statutory right to speak on behalf of the plaintiff or the defendant during the oral hearings. The only exception from the obligation to be represented by a lawyer admitted to the bar lies with the defendant in summary proceedings - the defendant is allowed to defend himself and can bring in other advisers.
11. Are the courts willing to consider the reasoning of courts in other jurisdictions that have dealt with similar cases?
The Hague patent courts certainly consider the reasoning of courts in other jurisdictions that have dealt with similar matters. It is a well-known fact that historically, the UK and German patent courts have used a different strategy to determine the scope of protection of a patent granted under the European Patent Convention. The UK approach construed a literal interpretation of the claims, while the German courts focused on the “subject matter of the invention”. In the Netherlands, the underlying reasoning of the invention was leading in determining the scope of protection of the invention.
The Protocol on the Interpretation of Article 69 of the European Patent Convention made changes to both the UK and German approach. Article 69 determines that patents should not be interpreted as meaning that the extent of the protection is to be understood as that defined by the strict, literal meaning of the wording used in the claims nor should it be taken to mean that the claims serve only as a guideline. It determines that it is to be interpreted as defining a position between these extremes which combines a fair protection for the patent owner with a reasonable degree of legal certainty for third parties. Next to that, the description and drawings of the patent (together with the history of the granting procedure) can help to resolve ambiguity found in the claims. The Dutch courts apply the protocol and keep track of developments in the United Kingdom and Germany closely.
12. How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?
The vast majority of patent cases are summary proceedings and accelerated proceedings. The Hague patent courts operate the VRO regime very strictly. At the start of the case the court issues a timetable to which the parties must adhere. The court does not allow deviations from this timetable. As a consequence, defendants do not have the opportunity to delay proceedings.
13. Is it possible to obtain preliminary injunctions? If so, under what circumstances?
Preliminary measures such as an injunction and seizure of evidence can be obtained. An injunction can be obtained if an urgent interest is present. In the Netherlands, an urgent interest is presupposed to be present in the first year. Over the last four years very few ex parte injunctions have been granted by the Hague patent courts. The reason for the court to be cautious when issuing ex parte injunctions in patent infringement cases lies in the complexity of the subject matter which is often not fully disclosed by the plaintiff. Preliminary measures, such as measures to preserve evidence or obtain an order for the seizure of goods suspected of infringing a patent are regularly issued by the Hague courts.
14. How much should a litigant plan to pay to take a case through to a decision at first instance? Is it possible for the successful party in a case to obtain costs from the losing party?
The costs of patent litigation consist of two components: attorneys’ fees and the fee of the patent agents. In relatively “simple” cases the costs vary between €50,000 and €150,000.
15. Is it possible for the successful party in a case to obtain costs from the losing party?
The judgment holds an executable title with regard to the costs of litigation. The winning party obtains a money order, which can be executed easily.
16. What are the typical remedies granted to a successful plaintiff by the courts?
In patent cases the typical remedies are an injunction and the distribution of earned profits or compensation of damage inflicted on the patent holder. All court orders are on pain of serious penalties, easily enforceable and therefore effective.
17. How are damages awards calculated? Is it possible to obtain punitive damages?
In accordance with international treaties (eg, the Agreement on Trade-Related Aspects of IP Rights), the infringer has to pay the patent holder damages adequate to compensate for the injury that the patent holder has suffered because of an infringement of a patent right. This applies only to infringers which knowingly, or with reasonable grounds to know, engaged in infringing activity.
Under Dutch law the right to compensate for damages and the right to obtain the surrender of profits cannot accumulate. The patent holder has a right to make a choice between distribution of earned profits or compensation for inflicted damages. In order to be able to make this choice, the court will order the infringing party to provide a full account of all relevant income realised with the infringing acts. Because the amount of profits can be calculated more easily than the amount of compensation, it is used as an alternative for compensation of damages. The surrender of profits is calculated by calculating the net or gross profits (depending on the claim) made by the sale of the infringing products by the infringing party. The court may also order the infringer to pay the rights holder’s expenses, which include appropriate attorneys’ fees even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity. Sometimes, surrender of profits is considered to be punitive damages. Next to that, no punitive damages can be obtained.
18. How common is it for courts to grant permanent injunctions to successful plaintiffs, and under what circumstances will they do this?
Permanent injunctions are regularly issued by the courts for the purpose of cessation of infringement of a patent right. Courts can hand down a permanent injunction on the condition that it is claimed by the patent holder or a party authorised by the patent holder.
19. How long does it take to obtain a decision at first instance, and is it possible to expedite this process?
A normal proceeding on the merits takes about 18 months to two years before a judgment is rendered. The proceeding is initiated if a writ of summons is served containing the arguments and claims of the plaintiff. Thereafter, the defendant files a statement of defence and possible counterclaims. Based on these written documents, the court decides whether additional written briefs may be exchanged to explain the arguments and claims further, or whether parties have to explain their arguments, claims and counterclaims in an oral hearing. Then, after six weeks the court renders its final judgment. Parties can expedite this proceeding if they allow the other party only limited extensions in the exchange of briefs. The party initiating proceedings on the merits has the option to choose for the VRO regime by requesting the court to apply this proceeding before it initiates the proceeding by serving the writ. The court then pre-schedules the data to serve the writ, file the briefs and schedules the oral hearing. After this decision parties no longer have the opportunity to extend the terms. To this type of proceedings, special procedural rules apply. The accelerated proceeding is characterised by the fact that parties have to file all their legal arguments and exhibits at the earliest opportunity. In the VRO regime the plaintiff can trust that it will obtain a judgment between nine and 12 months after the writ was filed.
20. Under what circumstances will the losing party in a first instance case be granted the right to appeal? How long does an appeal typically take?
The Court of Appeal of the Hague can review disputes. Parties are competent to file an appeal within three months after the first instance court renders judgment. An appeal regularly takes about 18 months. There is no separate accelerated proceeding for patent cases on appeal. Nevertheless, parties can request the court to expedite the appeal proceedings.
21. Are parties obliged to undertake any type of mediation/arbitration prior to bringing a case before the courts? Is alternative dispute resolution a realistic alternative to litigation?
Under Dutch law, the parties are not obliged to undertake any type of mediation and or arbitration. The Patent Act 1995 does not mention alternative dispute resolution and grants the authority to declare a patent invalid to the court only. Nevertheless, parties can always agree on alternative dispute resolution.
22. In broad terms, how pro-patentee are the courts in your jurisdiction?
In the Netherlands, the courts do often nullify patents. The courts find a balance in determining the scope of protection of the rights of the patentee.
23. Has your jurisdiction signed up to the London Agreement on Translations? If not, how likely is it to do so?
The Netherlands has signed up to the London Agreement. The Netherlands falls under the Type 2 jurisdictions as it does not have English, French or German as an official language. The Netherlands has selected English as its language for translation but requires translation of the claims into Dutch.
24. Are there any other issues relating to the enforcement system in your country that you would like to raise?
The Netherlands is one of the 25 member states participating in the new European patent system (unitary patent, language regime and Unified Patent Court). The implementation of the system, through the entering into force of the agreement and the application of the regulations, is planned for April 1 2014.