A view from Amsterdam

A European patent is like a soap bubble – it is wonderful to look at, but the moment you touch it, it splashes into little pieces.

The comparison of a European patent with a soap bubble doesn’t mean that a European patent is worthless – far from it. However, it does mean that until the moment a European patent is granted all goes well, but once it is granted and you actually want to do something with it, besides looking at its beauty, the European patent disintegrates into as many little national patents as it was designated for. This means that a European patent consists of a bundle, often as many as 18, of national patents for each of the countries that are member states of the European Patent Convention.
Any dispute based on a European patent has to be resolved before the respective national courts of the member states. There is still no centralised court that has European-wide competence in patent matters. Discussions about a European Community patent, and maybe a single patent court for the European Community, have been going on for years, and it is not at all likely that a community patent court will see daylight within the coming years, although the need for one seems obvious.
Patent litigation is by its nature technical, even state of the art, and specialised patent courts have a firm reputation for being able to cope with the technicalities required by this form of litigation. These courts’ decisions do justice to the efforts of innovative industries. In Europe, only three countries have specialised patent courts: London for the UK, the Hague for the Netherlands and the patent courts in Germany.
The Hague District Court and the Hague Court of Appeal, only 40 km from Amsterdam, also have a reputation for giving decisions with a cross-border effect, thus patent holders can litigate in one jurisdiction rather than, say, thirteen, with the same effect. In short, the Hague courts assume jurisdiction in cases with a sufficient connection between the bundle of patents. If the ‘spider in the web’ of a European distribution network is located in the Netherlands, or if no such European headquarters can be identified, as is often the case with US or Japanese companies, the Hague courts, having competence with regard to the Dutch patent, can extend this competence to other countries. In Augustine/Medeco, the court found that the competence regarding a Dutch defendant could institute competence towards a US co-defendant, as well as a number of other European co-defendants.
Another rather specific feature that has proven to be an effective tool in Dutch patent litigation is the so-called Kort Geding procedure. A Kort Geding is a procedure where immediate enforceable relief can be obtained in case of an urgent interest and in view of the interests of the parties. This claim can be brought before the president of the District Court and in patent cases is often preluded by written statements. Decisions granting preliminary relief are based on a provisional assessment of the merits and can be appealed. Generally, preliminary relief can be obtained within a one to three month period.
The patent court in the Netherlands can offer a good alternative for litigating in several jurisdictions on European patent matters. Especially for companies located outside Europe, the reputation of the Hague courts, the possibility of obtaining cross-border judgments and the relatively expeditious way of litigating have created an important patent litigation forum.
Peter Hendrick is a partner in the Amsterdam office of Freshfields Bruckhaus Deringer.