1. Patent infringement disputes
in The Netherlands
Wouter Pors
Bird & Bird The Hague

2. 2
Why The Netherlands?
Relatively small market, but…
Trade hub, a port of entry to Europe
Harbour: Rotterdam
Airport: Amsterdam Schiphol
Many European holding companies
No bias against foreign plaintiffs
English and German spoken
Reliable proceedings

3. 3
Dutch legal system
Civil law country
3 instances
District Court: first instance
Court of Appeal: full review
Supreme Court: review on points of law and clearly erroneous
Patent litigation: exclusively in The Hague
Specialized judges in each instance
50 – 60 judgments per year in first instance
Evidence can be submitted in English and German
Experts can speak English or German at oral hearing

4. 4
The District Court: an open mind
Judges in the IP chamber are interested in technology
Not an ivory tower: it is understood that patents are
business and are used as such
Judges are keen to develop the law
But at the same time want to keep in touch with
developments abroad
Close contact with especially English and German judges
Interested in learning about foreign case law
Willingness to refer questions to ECJ, even in first instance

5. 5
Procedure in first instance
Full proceedings on the merits: 2 - 2,5 years
Accelerated patent proceedings
16 – 24 months
1 round of written submissions
Oral hearing, 3 – 5 hours
No cross-examinations
Preliminary injunction proceedings (kort geding)
Urgency assumed in case of ongoing infringements
6 – 8 weeks
Writ of summons + oral hearing
Ex parte injunction
1 – 2 days

6. 6
Ex parte injunctions
Injunctions on infringement
Requirement:
Urgency
Assumed in cases of irreparable harm
Substantiate right and infringement!
Alleged infringer is not notified
Review in ordinary preliminary injunction proceedings
(kort geding)
Follow-up in full proceedings within 6 months
Liability for damages if overturned

7. 7
Ex parte injunctions: procedure
Varies per District Court
District Court The Hague
Request is filed
Judge discusses request with applicant by phone
Judge suggests changes
New request is filed and granted (or not)
Assumption: new request partly reflects the view of the Court
If judge intends to deny, request is normally withdrawn
Order contains term for service on infringer
Order is published on www.boek9.nl after expiry of term
Order contains date for review hearing in kort geding

8. 8
Ex parte injunctions: urgency
Special urgency required for ex parte decision
Infringement after writ of notification is intentional, so urgency
assumed (Meijn v. Tieleman)
Loss of exclusivity causes price depreciation, which is
irreparable (Meijn v. Tieleman)
Seriousness of infringement (many cases)
Review in preliminary injunction proceedings
Normal urgency required to maintain injunction, as alleged
infringer can now plead his case (Tieleman v. Meijn)
No counterclaim needed on review

9. 9
Evidential seizures
Raid on alleged infringer
Evidential seizure
Detailed descriptions
Samples
Object
Infringing goods
Materials and implements used in production
Documentation (hard copy & computer files): copies are made
Purpose: safeguarding evidence
Also for foreign litigation (DC Arnhem 1-6-2007, Synthon v.
Astellas): for German infringement proceedings

10. 10
Evidential seizures: who can do it?
Bailiff executes the seizure and is responsible
Plaintiff and its representatives not allowed to be present
DC The Hague 2-4-2008, Westhoff v. Grünewald
DC The Hague 22-4-2008, John Deere v. VR-Products
DC Arnhem 1-6-2007, Synthon v. Astellas: outside counsel hired
to represent plaintiff’s interest and thus identified with plaintiff
Independent patent attorney, not representing plaintiff
Other people involved by the bailiff
IT experts for searching the network and computers
Other experts
Court may appoint a sequestrator
To keep seized materials until disclosure order

11. 11
Evidential seizures: experts
Appointment of experts: varies per court
Amsterdam: law does not provide for appointment of experts
(DC 9-5-2007, Applera v. Stratagene)
Arnhem: court appoints expert (DC 8-5-2007, Applera v.
Stratagene)
The Hague: order determines which experts the bailiff may
involve (DC 11-03-2008, MFB Diffusion v. Asiangear and DC 2-
4-2008, Westhoff v. Grünewald)
If not appointed by the court, experts may have liability
DC Arnhem 1-6-2007, Synthon v. Astellas: issue of unlawfully
achieved evidence to be determined in main proceedings
Is this covered by professional indemnity insurance?
Will the expert require indemnification?

12. 12
Evidential seizure: access to results?
DC Arnhem: no immediate access, only after court order in inter
partes proceedings
1-6-2007, Synthon v. Astellas
Initial view The Hague:
Seizure implies access to documents that can contribute to establishing
infringement
No access to other documents, such as on amount of sales
Primarily responsibility of plaintiff’s outside counsel
18-6-2007, instruction in Applera v. Stratagene
New views The Hague:
No access, 2-4-2008, Westhoff v. Grünewald and 22-4-2008, John
Deere v. VR-Products
And now: as a rule no access, access requires a decision on a claim ex
843a (15-5-2008, Tieleman v. Meijn)
Utrecht: expert report describing the evidence
Amount of infringing products and profits made

13. 13
Limitations on access
Balance against protection of confidential information
This does not usually preclude a seizure, as the result is usually
not accessible automatically
It may limit access to certain documents
Purpose of seizure is not to discover the “pipeline”
Order for disclosure may include redaction of documents
Protective orders are available
Court documents are confidential anyway
Hearing may be partly behind closed doors
Judgment only published in redacted version
Mere threat of infringement does not warrant access!
DC The Hague 25-7-2007, Teva v. Abbott

14. 14
What about checks and balances?
Ex parte injunctions were copied from Germany
Germany has developed a system of protective letters
If you suspect a right owner may file ex parte, you may submit
your views in court beforehand
This is deemed necessary to maintain the balance of due
process
The Directive should not only provide for a high, but also
for an equivalent and homogeneous level of protection
(recital 10)
Not only instruments should be proliferated, but also the
accompanying checks and balances

15. 15
Protective letters in the Netherlands
Available in the District Court The Hague
Both for ex parte injunctions and evidential seizures
Submitted via a special e-mail address
To be renewed every 2 months
May result in handling request inter partes or just taking the
alleged infringer’s arguments into account
Other courts vary: some do, some do not
District Courts have so far been unable to reach
agreement
Repair legislation might be necessary