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Enforcement through the courts

At trial What level of expertise can a patent owner expect from the courts? The District Court of The Hague is the sole first-instance court in patent cases in the Netherlands. It is a specialised and respected patent court. All judges are experienced in handling patent cases and some judges have a technical background. The judges of the Court of Appeal in The Hague are also specialised in patent cases. Patentees can thus expect a high level of expertise from the courts. 

Are cases decided by one judge, a panel of judges or a jury? One judge decides preliminary relief proceedings. A panel of three judges decides proceedings on the merits. A panel of three judges decides appeals. 

If jury trials do exist, what is the process for deciding whether a case should be put to a jury? No jury trials exist in the Netherlands.

What role can and do expert witnesses play in proceedings? Parties will often submit expert statements, particularly in complex cases. There is no cross-examination of experts, but parties often bring their experts to the hearing. Experts will sometimes explain certain technical points during the hearing, usually on the request of one of the parties or the court; however, this does not have the nature of a cross-examination.

Does your jurisdiction apply a doctrine of equivalents and, if so, how? The Dutch Supreme Court has held that claim construction must be carried out on the basis of Article 69 of the European Patent Convention and the Protocol on Interpretation. The extent of protection conferred by a patent will thus be determined by the claims and the description and drawings shall be used to interpret the claims. Due account will be taken of any element which is equivalent to an element specified in the claims (Article 2 of the Protocol on Interpretation). The interpretation is conducted from the perspective of the skilled person and his or her knowledge of the art on the application or priority date (Supreme Court, April 4 2014, ECLI:NL:HR:2014:816, Medinol/Abbott). The protocol is considered a guideline for finding the answer to the question of the scope of protection of the patent. The protocol teaches that the claims should not be taken literally, nor merely as a guideline, but that there should be a balance resulting in a fair protection for the patentee and a reasonable degree of legal certainty for third parties.

Equivalents known on the application or priority date are thus already taken into account when constructing the claims. The District Court of The Hague has decided that there may then only be room for infringement by equivalence if it concerns equivalent measures that were not foreseeable on the application or priority date of the patent. These can then be taken into account in the context of the infringement question and, if appropriate, be included in the scope of protection of the patent (District Court of The Hague, June 18 2014, BIE 2014/41, MBI/Shimano). Equivalence is usually determined by applying the function-way-result test. This test is most common in patent proceedings regarding mechanical (engineering) patents. Courts sometimes apply the insubstantial differences test in pharmaceutical cases.

Is it possible to obtain preliminary injunctions? If so, under what circumstances? Patent owners can initiate preliminary relief proceedings. Preliminary injunctions (sometimes even cross-border) and ancillary orders (eg, recalls, rectifications and account of profits, but not damages) can be obtained within four to six weeks. To succeed, a patent owner must show that its patent has been infringed or that there is a serious threat thereto and that there is an urgent interest in the claimed relief. The urgency requirement is generally easy to meet, as under Dutch case law, patent infringements are usually considered to be urgent by nature. However, the patent owner does need to act in a sufficiently expedient manner. The claimed relief will be denied if the provisions judge finds that the patent has not been infringed or if there is a reasonable chance that the patent will be found invalid in opposition proceedings or proceedings on the merits.

In extremely urgent cases, the patentee may request an ex parte injunction against the infringer. The provisions judge will decide on the ex parte injunction request without hearing the alleged infringer. Ex parte injunctions can be obtained in one to three days. However, ex parte injunctions in patent cases are rare in the Netherlands. The infringer can protect itself against a possible ex parte injunction by submitting so-called 'protective letters' with the district court in the relevant districts. This is not a guarantee that no ex parte injunction will be issued. The provisions judge will consider and assess the arguments in the request and the arguments in the protective letter when deciding on the ex parte injunction request.

How are issues around infringement and validity treated in your jurisdiction? In preliminary relief proceedings, the patent owner must show that its patent has been infringed. The claimed relief will be denied if the provisions judge is of the opinion that there is a serious chance that the patent will be found invalid in opposition proceedings or proceedings on the merits.

In proceedings on the merits, the patent owner must show that its patent has been infringed. If the defendant claims revocation of the patent, the defendant has the onus of proving that the patent is invalid (Dutch Supreme Court, March 6 2009, LJN: BG7411, Schneider v Cordis, legal ground 5.2.3).

Will courts consider decisions in cases involving similar issues from other jurisdictions? Dutch courts are interested in decisions from courts in other jurisdictions, particularly courts from European jurisdictions with good reputations in patent law (eg, the United Kingdom and Germany). However, Dutch courts may deviate from decisions in other jurisdictions.

Dutch courts generally follow the case law of the Technical Boards of Appeal of the European Patent Office. However, Dutch courts may still decide to revoke the Dutch part of a European patent that was upheld by the Opposition Division or Technical Board of Appeal of the European Patent Office.

Damages and remedies Can the successful party obtain costs from the losing party? The losing party is usually ordered to pay the court fees and legal costs of the winning party. Article 1019(h) of the Code of Civil provides that the party held in the wrong will be ordered, if claimed, to pay the reasonable and proportionate legal costs and other costs that the party in the right has made, unless this would be unreasonable. These normally include the costs of lawyers, patent attorneys and experts. However, the reasonable and proportionate legal costs can not be recovered if the proceedings pertain solely to the validity of the patent and were not initiated in response to a threat of enforcement of the patent. In such a situation, only the court fees are recoverable, which are usually very low.

What are the typical remedies granted to a successful plaintiff? The most important remedy available in the Netherlands is an injunction (which can be cross-border in certain circumstances). Injunctions are normally phrased as an order not to (directly or indirectly) infringe a patent, under forfeiture of penalty payments. Thus, injunctions are normally not limited to specific products of the infringer (Court of Appeal of The Hague, December 31 2013, IEF 13399, Apple v Samsung). However, the granted orders should be interpreted in light of the considerations in the decision (Supreme Court, November 24 1989, ECLI:NL:HR:1989:AD0964,Interlas/Lincoln). In exceptional circumstances, the courts may grant a moratorium (ie, an order refraining the infringer from dealing in the infringing product for a certain period after expiry of the patent) in order to prevent the infringer from benefiting from the infringement (Supreme Court, December 18 1992, BIE 1993/81, ICI v Medicopharma; European Court of Justice, July 9 1997, C-316/95, Generics v Smith Kline).

Other remedies available include recalls, rectifications, destruction of infringing goods and account of profits. These can be ordered in preliminary relief proceedings. Measures that are available in proceedings on the merits but not in preliminary relief proceedings include declaratory judgments and damages. For instance, a patentee may claim a declaration that its patent has been infringed and the alleged infringer may claim a declaration that the patent is invalid or not infringed. In addition, patentees usually claim damages, the extent of which is determined in follow-up proceedings. Only actual damages are recoverable. Alternatively, patentees may claim surrender of the infringer's profits (Article 70(5) of the Patent Act).

How are damages awards calculated? Are punitive damages available? Damages are usually assessed in follow-up proceedings. Three alternative methods for calculating damages are available:

  • lost profits;
  • reasonable royalties; or
  • surrender of the infringer's profits.

Under the lost profits calculation method, a patentee can recover the sum that it would have earned had its patent not been infringed. Under the reasonable royalty calculation method, a patentee can recover an amount equal to the licence fee that the infringer would have had to pay if it had negotiated a fair and reasonable licence with the patentee. Under the surrender of the infringer's profits method, the patentee can claim the profits that the infringer made based on the infringement. Punitive damages are not available.

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this? If the courts consider a patent to be valid and infringed, they will award a permanent injunction. Permanent injunctions are normally provisionally enforceable notwithstanding appeal. An injunction will be refused only in exceptional circumstances (eg, in the case of an abuse of rights).

Timescale and costs How long does it take to obtain a decision at first instance and is it possible to expedite this process? In regular proceedings on the merits, it usually takes over one year for a first-instance decision to be rendered. However, most patent proceedings on the merits are conducted in accordance with the so-called ‘accelerated regime’. Under the accelerated regime, first-instance decisions may be rendered within 11 or 12 months.

How much should a litigant plan to pay to take a case through to a first-instance decision? Court fees are very low in the Netherlands (usually less than €1,000). The most substantial costs are for attorneys, patent attorneys and possibly experts. In case of an unfavourable decision, the litigant may be ordered to pay the costs of proceedings of the other party.

Legal costs in first-instance proceedings on the merits are approximately between €100,000 and €200,000, although this could be more in complex cases. Costs in preliminary relief proceedings are usually a bit lower. Appeal costs are usually a bit lower than those in first-instance proceedings. Costs in relation to Supreme Court proceedings are generally lower than appeal costs.

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