NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
2.4 Specialised Bodies/Organisations for the Resolution of Disputes A local division of the UPC is located in The Hague. Furthermore, the Netherlands Patent Office can provide non-binding advice with regard to the validity of a granted Dutch national patent. 2.5 Prerequisites to Filing a Lawsuit In order to file an action for revocation of a national patent, the plaintiff must first obtain nul- lity advice from the Netherlands Patent Office. The nullity advice must be submitted to the Dis- trict Court of The Hague in the revocation action, but it is not binding on the court. There are no mandatory procedural prerequisites for filing a lawsuit related to the national part of European patents. Sending warning or notice letters to alleged infringers before filing a lawsuit is also not compulsory. However, it is recom- mended to send a notice or cease and desist letter before initiating infringement proceedings or, in the case of invalidity actions, to send a warning letter to the patentee, requesting them to withdraw the patent or confirm that they will not enforce it. Dutch case law has demonstrated that failing to send such letters may impact later cost orders. Additionally, the writ of summons must be reg- istered in the patent register within eight days of its issuance. While this is not a mandatory requirement for initiating the procedure, if the writ of summons is not registered within the specified period, the plaintiff may be required to compensate any damage suffered by third par- ties who, in good faith, acquire rights after the period has passed and before the registration.
2.6 Legal Representation Parties involved in intellectual property litigation are generally required to be represented by a lawyer. Patent attorneys have advocacy rights in court, with prejudice to the responsibility of the lawyer. 2.7 Interim Injunctions PIs are available in the Netherlands, either inter partes or ex parte. In PI proceedings, the judge makes a progno- sis of the outcome of the case on the merits. The standard to be applied in PI proceedings is that an injunction must be rejected if there is a reasonable (that is, a serious, non-negligible) chance that the claim will be rejected in pro- ceedings on the merits. There is an urgency requirement in PI proceed- ings. Generally, urgency is assumed if there is an ongoing infringement. However, sitting idle for extended periods of time may lead to loss of urgency. Loss of urgency is not always perma- nent in nature. Urgency may revive under certain circumstances, such as an increased scope of the infringement. In extremely urgent cases, interim relief can be obtained on an ex parte basis, ie, without hear- ing the defendant (this rarely happens in prac- tice). This would involve a written request to the court, providing all the relevant details of the pat- ent and the dispute. The court generally decides on such requests within one or two days, and if granted an injunction with immediate effect can be obtained. It should however be noted that the court subsequently usually schedules a date for an inter partes hearing in the next four to eight days in case the defendant wants to challenge the decision.
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