NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
2.8 Protection for Potential Opponents A potential infringer of patent rights anticipating an ex parte injunction can file a protective let- ter with the District Court in The Hague, raising objections such as the invalidity of the patent right or non-infringement of the product in ques- tion. In essence, protective letters are a pre-emptive statement of defence. While filing a protective letter does not guarantee that an ex parte injunc- tion will not be issued, the provisions judge will consider both the patentee’s request and the arguments presented in the protective letter when making a decision. These letters are valid for six months, but may be renewed for addition- al six-month periods upon request to the court. 2.9 Special Limitation Provisions An infringement action must be initiated within 20 years from the date the infringement occurred; however, claims for damages must be filed with- in five years starting from the day after the patent owner became aware of the damages and the responsible party. However, in the case of wilful patent infringe- ment, the limitation period for damages may under certain circumstances be 12 years. 2.10 Mechanisms to Obtain Evidence and Information The Dutch legal system provides several mecha- nisms for obtaining information and evidence in intellectual property matters, both before and after formal proceedings have commenced. A party may request a court order to obtain spe- cific documents or evidence held by another par- ty, such as information, records or items related to the alleged infringement. To be granted per- mission, the requesting party must demonstrate
a direct and concrete interest and clearly specify the documents or evidence sought, avoiding fishing expeditions. The requested materials must relate to a legal relationship involving the party, with patent infringement cases typically qualifying. The court will also weigh the inter- ests of the party in its decision, such its interest in protecting confidential information and trade secrets. Evidence can be obtained in different stages of the proceedings, as set out below. • Incidental motion for disclosure: a party can request specific documents via an inciden- tal motion. In regular proceedings, the court typically decides on disclosure early, allowing the claimant to use the documents in submis- sions and hearings. If the incidental motion is brought in accelerated proceedings on the merits, then the court will only decide on the claim after all written submissions have been filed and the hearing on the merits of the case has taken. Accelerated proceedings on the merits (contrary to regular proceedings on the merits) thus provide little to no room for obtaining evidence in advance of the hearing. • Claim for disclosure in main action of the pro- ceedings on the merits: disclosure of specific documents can also be claimed in the main action in the proceedings on the merits. The claimant could primarily claim an injunction and alternatively, if the court would not yet be convinced that there is an actual infringe- ment but that there is a reasonable suspicion of infringement, disclosure of specific docu- ments. • Separate proceedings: other possibilities for obtaining evidence include a pre-action claim for disclosure of specific documents (whether or not preceded by an evidentiary seizure),
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