By Lawfox | Algemeen | 24 February 2022 | 5 min. reading time
We notice that foreign companies like to litigate about patent law in the Netherlands. This has to do with the attractive procedural regime in the Netherlands. We also regularly receive questions about what such patent law proceedings in the Netherlands look like and what possibilities there are. In this blog I will explain the various procedures and options available in the Netherlands.
Specialized patent judge
The Netherlands have a specialist patent court in The Hague. Proceedings may be instituted before the district court and, if necessary, one may appeal to the court of appeal. To monitor the unity and development of the law, the case can sometimes also go to the Supreme Court.
Different procedures for patent law
There are various possible procedures for patent law cases: First of all, there is an ordinary regime and an accelerated regime for proceedings on the merits. In addition, we have a fast interim injunction by means of summary proceedings, and even the possibility of unilaterally requesting the court to prohibit a patent infringement by means of the so-called ex parte (although not much used in patent cases).
Dutch case law allows patent infringement and validity to be raised in the same proceedings (unlike, for example, Germany).
Accelerated proceedings on the merits for patent rights
Accelerated proceedings on the merits take approximately 12 to 18 months, and are subject to strict time limits. Accelerated proceedings on the merits can be requested from the court. This is usually granted.
FRAND
An exception applies in any case to so-called FRAND cases. These are cases which have to do with the possibility of providing the patentee with compulsory access to patented technology based on a certain standard under fair, reasonable and non-discriminatory conditions (hence “FRAND”).
Conduct of an accelerated patent law proceedings on the merits
An accelerated trial on the merits may be conducted by filing a request with the court to that effect. After permission has been granted, the writ of summons must be expeditiously served on the alleged infringer (approx. 3 weeks). After that the summons must be served on the court roll. The other party then has 10 weeks to respond in writing. That defense often includes a counterclaim, such as nullification of the patent. The initial plaintiff then also has 8 weeks to respond (only) to the counterclaim. After that, the written round is completed and an oral hearing can be held. Any final evidence can be submitted 4 weeks before the oral hearing. An oral hearing normally lasts about 6 hours, during which both parties can explain their position and the court can ask the parties questions. If no settlement is possible, the court will give a judgment. The judgment can take from 2 to 8 months, depending on how busy the court is.
If, for whatever reason, witnesses or experts need to be appointed, or if other procedural ‘incidents’ occur, the court will determine that the case will be referred to ‘ordinary’ proceedings on the merits. Similarly, if a FRAND defense is raised, the case will be referred to ordinary proceedings on the merits.
Ordinary proceedings on the merits for patent law
Ordinary proceedings can easily last 14 to 20 months, with extensions possible. In proceedings on the merits all possible instruments can be used, such as an injunction, a recall and the destruction of all infringing goods. In addition, damages can be claimed.
Summary proceedings for patent law
Summary judgment is a fast, flexible procedure for obtaining injunctive relief, such as a temporary halt to the marketing of infringing goods. A judgment can be obtained within about 3 to 4 months from the date of summons – depending on the urgency.
However, summary proceedings must be followed by proceedings on the merits. In addition, summary proceedings cannot be used to obtain damages.
Legal costs in patent cases
Dutch case law has a full procedural cost allowance in patent cases. This means that the losing party must pay all costs. Patent lawsuits are often very complex and involve a lot of costs. The full litigation costs order made these types of proceedings, especially for SMEs, too expensive. The judiciary has therefore introduced indicative rates for patent cases in the courts as of 1 September 2020. Such indicative fees were already known for some time in other intellectual property cases, such as copyright infringement and trademark infringement.
The indicative rates make a distinction in the type of case, and the degree of complexity of the case. Usually a patent case will qualify as a normal or complex case.
In summary proceedings, indicative rates of up to EUR 40,000 apply for normal proceedings and up to EUR 80,000 for complex proceedings. Simple proceedings, which occur less frequently, are subject to a maximum court fee of EUR 10,000, whereas very complex proceedings (as in the case of FRAND cases, or in complex life sciences patents) are subject to a maximum court fee of EUR 120,000.
In cases on the merits, the maximum indicative fees in ordinary cases are up to EUR 75,000, and in complex cases up to EUR 150,000. In simple cases the indicative fees are a maximum of EUR 35,000 and in very complex cases a maximum of EUR 250,000.
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