On 12 July 2012, the Court of Justice of the European Union (“CJEU”) published its much-anticipated decision in the Solvay v. Honeywell case. The main conclusion is that the CJEU is willing to turn a blind eye to the Dutch practice in which courts assume jurisdiction with regard to cross-border injunctions in preliminary relief proceedings, even if the validity of the patent is raised as a defence.

The decision concerns Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“EEX Regulation”). On the basis of the EEX Regulation, several courts, in particular in the Netherlands, granted cross-border injunctions in cases involving European patents. Rather than requiring patent owners to initiate legal proceedings before all the courts of the member states where the European patent was valid, Dutch courts granted preliminary measures with effect in all those member states.

The CJEU, however, restricted the power of national courts to grant cross border injunctions. In its recent Solvay v. Honeywell decision, the CJEU further sets out the restrictions without, however, entirely ruling out cross-border injunctions.

In this case, the well-known Belgian company Solvay sued three Honeywell companies in the Netherlands (one Dutch entity and two Belgian entities) for infringement of its European patent EP 0 858 440. During the proceedings on the merits, Solvay lodged an application for provisional relief seeking a cross border injunction that would take effect in certain member states outside the Netherlands. In repsonsse, Honeywell raised the invalidity of the patent as a defence, without actually initiating invalidity proceedings or declaring its intent to do so in the other member states. Honeywell argued that the Dutch court should suspend its decision or reject the claims of Solvay.

The CJEU found that the Honeywell defendants accused of marketing the same infringing products in the same member states and hence were accused of infringing the same national parts of a European patent governed by the same law. As a result, the defendants could all be sued before a single (Dutch) court, since there was no risk of irreconcilable judgments, as defined in article 6(1) of the EEX Regulation. Thus it can be assumed that, under certain circumstances, article 6(1) of the EEX Regulation can create jurisdiction for cross-border injunctions.

The jurisdiction of a national court will be limited to cases where provisional measures are being requested (under article 31 of the EEX Regulation). For proceedings on the merits regarding the validity of the national patents that together constitute the European patent, only the courts in the respective member states have jurisdiction for their respective national patent (according to article 22(4) of the EEX Regulation). The CJEU sees no risk of conflicting decisions, since the provisional decision on validity, taken by the court before which the interim proceedings have been brought, will not in any way prejudice the decision to be taken on the merits by the court having jurisdiction under article 22(4).

With this decision the CJEU provides a safety net for interim proceedings seeking a cross-border injunction based on jurisdiction laid down in article 31 of the EEX Regulation.

CJUE,12 July 2012 (C-616/2010, Solvay v. Honeywell), available at www.curia.eu.