28 August 2011

Dutch Courts Will Issue ‘Pan-European’ Injunctions: We Were Wrong!

Last Thursday we stated that reports of a cross-border injunction issued by a Dutch court were incorrect, because the European Court of Justice (ECJ) has previously ruled that national courts do not have the power to issue such injunctions in patent matters.

We could follow the lead of the mainstream media, and call this post a ‘clarification’.  But we will not.  Instead, we will call a spade a spade, and admit the simple truth – we were wrong.

Quite aside from anything else, the truth is far more interesting, and only serves to reinforce the main point of our previous article – the Netherlands is a really good place to validate a European patent relating to products that are imported to, or exported from, continental Europe.


As the dust settles on the decision issued by the District Court of The Hague on 24 August 2011, Richard Ebbink of Dutch IP firm Brinkhof has provided an analysis on the Kluwer Patent Blog.  The facts, as explained by Ebbink, may be summarised as follows:
  1. the ECJ indeed ruled in 2006 that national courts may not exercise cross-border jurisdiction in relation to European patents;
  2. however, in July this year the Court of Appeal in The Hague determined that the ECJ ruling does not apply to provisional decisions (i.e. decisions made preliminary to a full trial) in respect of Dutch courts’ jurisdiction over Dutch-domiciled defendants;
  3. there is currently a further referral to the ECJ requesting clarification as to whether the 2006 ruling applies also to provisional decisions, however no decision is expected until at least 2012;
  4. until the ECJ rules otherwise, it can be expected that the Dutch courts will continue to issue cross-border provisional injunctions against defendants resident in The Netherlands.
Three of the defendants in the case brought by Apple against Samsung in The Hague are Dutch companies.  The provisional injunction therefore applies to these companies in The Netherlands, and in other European countries in which the Apple patent has been validated.

Significantly, however, since the Dutch courts do not consider themselves to have cross-border jurisdiction against defendants which are not resident in The Netherlands, the injunction does not apply to the Korean parent company, or to any Samsung subsidiaries, affiliates or distributors, in other European countries.


The overall effect of the cross-border injunction is therefore probably not too much different from an injunction effective in The Netherlands only.  It serves to prevent the barred Galaxy smartphones from entering Europe via The Netherlands, or in any other manner through the hands or books of the Dutch Samsung companies.

Of course, since the provisional injunction does not come into effect until 13 October 2011, the Dutch companies still have time to offload any stock that they may have in their possession – perhaps to Samsung subsidiaries in less patentee-friendly European jurisdictions!

The message for other applicants for European patents is – at least for the moment – loud and clear.  Even if sales of patented products are not particularly strong in the Netherlands, it is nonetheless worth giving very serious consideration to validating a European patent there.

For English-language applicants, the cost of validation is not very high.  The Netherlands is a party to the London Agreement, and requires only the claims of the European patent to be translated into Dutch at validation.  Translation costs, which are often the most expensive aspect of validation, are therefore kept to a minimum.


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