NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
Declaration of Non-Infringement and “Arrow Declarations” Parties can claim a declaration of non-infringe- ment. The requirement for obtaining such declar- atory relief is that the patent is invalid and/or not infringed. An “Arrow” declaration (inspired by the UK “Arrow” case) is a claim made to confirm that a specific product or process would not have been patentable (eg, due to lack of novelty and/or lack of inventive step) at a particular point in time. The alleged infringer can seek an Arrow declaration to ensure that their product is either not covered by future patents or that any such patents would be invalid due to obviousness or lack of novelty. A declaration of non-infringement and/or an “Arrow” declaration must be sought in proceed- ings on the merits. A legitimate interest is gener- ally assumed to be present if the party seeking the declaration is able to demonstrate real threat of enforcement, eg, following a warning letter. 2.3 Courts With Jurisdiction Patent-related proceedings are heard by the District Court of The Hague at first instance and the Court of Appeal of The Hague at second instance. The courts have exclusive jurisdiction over patent cases in the Netherlands. The pro- ceedings are handled by a division with special- ised patent judges, some possessing technical expertise. Cassation proceedings are conducted before the Dutch Supreme Court, also located in The Hague. The Supreme Court only considers questions of law, not questions of fact.
of a European patent through a procedure on the merits at the District Court of The Hague. The revocation or invalidation of a unitary patent can be filed with a procedure at the UPC. Before initiating a revocation or invalidation action against a Dutch national patent, the claimant must first obtain a patentability (nullity) opinion from the Netherlands Patent Office. This opinion must be submitted alongside the writ of summons or as part of a counterclaim in the invalidation proceedings. In the Netherlands, proceedings are not bifur- cated. This means that a counterclaim for revo- cation can be brought in pending infringement proceedings. In principle, any party can file a revocation or invalidation action at the Dutch court. No special interest is required. Action for a Compulsory Licence A third party can request a compulsory licence from the Dutch court if the patent holder or a licensee has not used the patented invention within three years of the patent grant (or, for European patents, within three years of the pub- lication date). The compulsory licence will not be granted if the patent owner can provide a valid reason for the lack of using the invention. Additionally, a patent holder can request a com- pulsory licence from the Dutch court based on “dependency.” This occurs when a later patent cannot be used because it infringes on an ear- lier patent. In such cases, the holder of the later patent can seek a compulsory licence to use the earlier patented invention.
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