In the late 1990s, patentees were attracted to the courts of the Netherlands after they began granting Europe-wide injunctions in patent infringement cases. The promise of a Europe-wide embargo was attractive to companies, and US companies in particular, which were frustrated at the expense and unpredictability of litigating country-by-country in Europe.
It was thought that the ECJ (as it then was) had put an end to this creative interpretation of the European Patent Convention by the Dutch courts with its decisions in the cases of GAT v LUK and Primus/Roche. In summary, these cases ruled out cross border injunctions being granted for infringement when invalidity was raised as a defence. Validity within a designated country could only be decided by the competent authority or court of that country.
However, in the recent case of Solvay v Honeywell, it seemed that the District Court in the Hague had once again became creative and was testing these limits. It made a referral to the CJEU on the question of whether it can issue interim cross-border injunctions for patent infringement.
Solvay had alleged that its European patent was being infringed in several countries by three Honeywell companies, two Belgian and one Dutch. It argued that the Belgian defendant companies should be dealt with by the Dutch District Court in order to avoid the risk of irreconcilable decisions if the cases were heard country by country.
The opinion of the Advocate-General was issued in the Spring. To say it was enlightening would be kind. In any event we need not dwell on it since the judgment of the Court was delivered on 12 July 2012. It is closely reasoned over a number of pages and, in reading it, one needs to have one’s fingers dexterously inserted into the relevant Articles of Regulation (EC) 44/2001, the European Patent Convention and the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters of 1968.
Cutting through all this however, our preliminary view is:
- Fundamental to the decision is that it is highly desirable to have consistent judgments, good for all the relevant states, where the patent(s) are the same and the facts are the same.
- Accordingly, an interim injunction, covering all relevant jurisdictions, may be granted by the Dutch (or any other EU) court where prima facie infringement is established.
- It is so because the relief granted is temporary, and does not trespass on the validity court’s exclusive jurisdiction, which will be exercised at an eventual full trial hearing.
- However, where validity has been put in issue, in the seised court or one or more other courts for that matter, interim relief should NOT be granted where there is a reasonable, non-negligible possibility that the patent in question should be declared invalid by the competent court (ie the court to which the interim injunction application is made or another national court where invalidity has been alleged).
On the face of it, this appears to give patentees, including patentees of the NPE type, a powerful extra remedy where the facts and circumstances are right. It is usually a tall order for a defendant to put together a good invalidity case, even of a non-negligible kind, in next to no time. It also appears to provide an incentive for patentees to bring proceedings in the Netherlands. However, this power will be enjoyed by the courts of ALL states within the EPC, not just Dutch courts – should they wish to exercise it.