Patent Litigation in Practice Series: Spotlight on the Netherlands: Dutch cross-border injunctions

Dutch courts have a tradition of granting cross-border injunctions, dating back to the 1989 Dutch Supreme Court judgment in Lincoln v Interlas[1], which held that “there is no reason that a defendant’s obligation to act/refrain should stop at national borders”. Dutch cross-border injunctions potentially have far-reaching consequences and are litigated far more often in the Netherlands than in other jurisdictions. 

Historically, Dutch courts have assumed international jurisdiction for infringement of other national parts of a European patent where the main defendant is domiciled in the Netherlands and other defendants acted according to a shared common strategy of that group. This practice was also known as the “spider-in-the-web doctrine”. 

Limitations of the Dutch practice

In 2006, the CJEU substantially restricted this practice. In GAT v LuK[2], it ruled that there would be no jurisdiction for cross-border injunctions in cases on the merits where a defendant invokes the invalidity of the foreign part of a European patent as a defence. Additionally, in Roche/Primus[3], the CJEU narrowed the possibility to involve defendants from other jurisdictions by ruling that there was no risk of irreconcilable decisions when the claims related to different national parts of the same European patent. This meant that the Dutch courts would only have cross-border jurisdiction if a Dutch defendant was allegedly involved in the infringement in other countries, and that proceedings on the merits would need to be stayed after a validity defense, pending the outcome of  the validity proceedings in the other jurisdiction(s). 

In 2012, the CJEU clarified in Solvay/Honeywell[4] that this is different in PI cases, since only a preliminary ruling is given on the likelihood that the patent will be revoked by the competent court. 

Current Dutch practice

Following these decisions, Dutch courts have maintained their reputation for issuing cross-border injunctions, especially in PI proceedings. One of the reasons for this is that the characteristics of  Dutch PI proceedings make them particularly well-suited for cross-border injunctions.

A distinguishing feature of Dutch PI proceedings is that they are separate proceedings and do not require a pending infringement action on the merits, making a Dutch PI an efficient and cost-effective option for quick relief against ongoing/threatened infringement. The PI judge gives a preliminary ruling on the merits of the case and assesses both infringement and validity, which following Solvay/Honeywell includes a preliminary assessment of the validity of the foreign parts of the patent in cross-border claims.

While a certain level of urgency is required, Dutch courts interpret this requirement less strictly than, for instance, German courts do. Generally, urgency is assumed in cases of ongoing infringement but might be lost if a claimant does not act within a reasonable timeframe. 

For a PI to be granted, the court balances the (urgent) interest of the claimant to stop infringement against the interest of the defendants. Dutch PI injunctions are in principle immediately enforceable, without requiring security, making this a relatively quick procedure to prevent (further) international infringement. However, there is strict liability for enforcing a PI if it is later found to be unfounded.

A recent case illustrating this Dutch cross-border injunction approach is Novartis/Pharmathen[5]. Novartis held a European patent for a pharmaceutical composition comprising octreotide microparticles, valid in several countries, including the Netherlands. After an unsuccessful PI attempt in Greece against the Greek entity Pharmathen SA, Novartis initiated Dutch PI proceedings against Pharmathen SA’s parent company , Pharmathen Global BV, which is domiciled in the Netherlands. Novartis accused Pharmathen Global of infringing through its Global Product Catalogue and held it responsible for the alleged infringing acts of its subsidiary. Novartis applied for a cross-border injunction across all territories where the European patent was in force. 

The Dutch Court of Appeal assumed jurisdiction as Pharmathen Global was domiciled in the Netherlands and found that it had indeed committed infringing acts. Pharmathen Global was also held responsible for directing the infringing acts of Pharmathen SA based on the evidence provided. The Court of Appeal therefore imposed a cross-border injunction against infringement in all EP territories and ordered Pharmathen Global to instruct Pharmathen SA to cease infringement in all EP territories (excluding Greece, given the denied PI against Pharmathen SA).

Recent developments

On 25 February 2025, the CJEU issued its judgment in BSH Hausgeräte/Electrolux. With regard to claims on the merits of different national parts of a European patent from other EU member states, the CJEU confirmed the Dutch approach, noting that when a validity defense is raised the court seized of a cross-border infringement claim retains its jurisdiction even if another court must first decide on the validity of the relevant national part. The CJEU went even further with regard to patents of non-member states.  The CJEU ruled that an EU member state court can rule on such a validity defense as long as it does not affect the existence or registration of the patent or any other amendments in registers of third states. The court may thus give an inter partes judgment on validity of the foreign patent in proceedings on the merits. For cross-border claims relating to patents from outside the EU, such as the UK, the Dutch courts will therefore not need to stay the proceedings when a validity defense is raised. It is to be expected that this will make the Dutch courts more attractive, provided there is a Dutch defendant involved in the alleged infringement.

This applies also for the UPC, which applies the same EU law on international jurisdiction and acts as a common court of the Contracting Member States. Given the similarities between the UPC and Dutch PIs, it can also be expected that the UPC will become a forum where cross-border PIs will also be available.
 

[1]Court of Appeal The Hague, 15 November 2022, ECLI:NL:GHDHA:2022:2327.

[2] CJEU 13 July 2006, C-4/03 (GAT/LuK).

[3] CJEU 13 July 2006, C-539/03 (Roche/Primus).

[4] CJEU 12 July 2012, C-616/10 (Solvay/Honeywell).

[5] Dutch Supreme Court 24-11-1989, ECLI:NL:PHR:1989:AD0964(Interlas/Lincoln).