I am sure you remember the good old days when Dutch patent practitioners introduced the “pan European injunctions”. Based on the idea that a European patent granted in Munich according to uniform (and unified) principles of patentability should enjoy pan-European protection by a single strike. The Dutch, not known for their shyness when it comes to introducing creative policies, introduced the idea of a “cross border” injunction, of course, to be rendered by Dutch courts. This was the early 90’s. The Dutch Supreme Court opened the cross border doors in its decision Lincoln/Interlas of 24 October 1993, published in NJ 1992/404). At least, that was what the originator of Europe’s Cross Border Practice, Willem Hoyng, advocated. He proposed to organize a mock trial, held in the dependence of the European Patent Office in Rijswijk (The Hague, Netherlands) for an audience of over 200 patent practitioners, opening the eyes of many to show that this was the solution to Europe’s lack in promoting a uniform patent enforcement strategy. In what became his “house style” advocacy Willem Hoyng defended that art 69 European Patent Convention provided for a stepping stone for a uniform interpretation of a EPO granted patent. Uniformly granted, according to unified principles of patentability, so what’s wrong in letting a Netherlands judge order an injunction Europe-wide on the basis of such unified principles?
The Cross Border Practice worked very well. For a while, that is. It did attract in the 90’s and early 2000 numerous –mostly US – companies to the Dutch courts, frustrated as they were by the slow pace of European patent integration and notoriously unpredictable outcomes (as the ones we still experience now, anno 2008, see our post on the ECB vs. DCC case).
All this ended with the outcome of legal scrutiny by the European Court of Justice. Two ECJ cases choked the breath out of Cross Border Relief, GAT vs. LUK and Primus/Roche. Blogger did argue the same, in IER (Netherlands Intellectual Property Monthly). Not so, Willem Hoyng, argues, disputatious as he (still) is:
“(…) We think that GAT-LUK and also the Dutch Supreme Court decision have to be interpreted in such a way that the court can deal with infringement questions as long as it does not rule on the validity. We conclude this from the fact that the court is competent to hear the infringement case and does not need to rule on validity in order to make a decision. This may certainly be the case where a defendant denies that he has committed infringement acts in certain or all countries. Furthermore, many technical non infringement arguments do not necessitate a ruling on validity (…)”
“Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving an ambiguity found in the claims. Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and drawings by a person skilled in the art, the patentee has contemplated. On the contrary, it is to be interpreted as defining a position between these extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third parties.”