On 26 June, Mr Justice Pumfrey gave judgment in a patent action (Boston Scientific & anor v Julio C Palmaz & anor) in which Boston sought revocation and a declaration of non-infringement of two patents relating to stents – tiny tubular scaffolding used with balloon angioplasty in treating patients who have diseased arteries or veins.
A second related action about the balloons used in angioplasty is ongoing. Judge Pumfrey found that both patents were invalid and that the claims for infringement had failed. But this was part of a more substantial picture in the US and Europe. An Eversheds team, led by Michael Burdon and myself, acted for Boston.
Intellectual property litigation, particularly patent litigation, often has cross-border implications and the importance of a particular court being seised of jurisdiction within Europe is crucial in many cases. This was particularly so in this action.
In the first action, once it became apparent that proceedings were likely to be issued for patent infringement in the Netherlands – where extra-territorial injunctions are readily granted – it was crucial for the UK courts to be first seised in order to stop the Dutch courts having an opportunity to grant an injunction covering the UK.
Fortunately, proceedings started in time and the UK was withdrawn from the Dutch proceedings which, in any event found, in refusing an application for an immediate injunction, that the patents were likely to be held invalid and not infringed.
But in the second case the UK courts were not first seised and therefore the matter had to be argued in both the UK and the Dutch courts on the basis of the provisions of the Brussels Convention and the European Patent Convention.
The Dutch court had no hesitation in finding jurisdiction notwithstanding the existence of a reference from the UK court to the European Court of Justice.
On appeal in the Netherlands, Judge Brinkoff viewed jurisdiction more restrictively and would only grant pan-European relief if the Dutch defendant was the "spider in the web" – that is, if it directed the group's affairs Europe-wide.
In the past, the Dutch courts had asserted pan-European jurisdiction on the presence of an insignificant part of an organisation within the Netherlands. This decision is likely to limit the far-reaching remedies granted by the Dutch courts.
To conclude, it is crucial when considering IP litigation to consider the European and jurisdictional aspects in developing tactics.