NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
preliminary expert reports and preliminary hearings of witnesses. 2.11 Initial Pleading Standards Under Dutch civil procedural law, a claimant has the obligation to present its case in full in its writ of summons, which means that all the facts including the evidence which substantiates those facts have to be presented at the start of the proceedings (“front loaded” system). For example, in infringement cases, the evidence must demonstrate that all claim features are met by the infringing product/process or at least there must be a reasonable suspicion. Depend- ing on the defence, more evidence can be sub- mitted at a later stage. Most patent proceedings in the Netherlands are conducted under the “accelerated regime”. If the claimant wishes to be admitted to the acceler- ated proceedings regime, it must submit a draft summons with the court before serving the writ of summons on the defendant and request the court to create a schedule for the proceeding. The procedural rules applicable to the acceler- ated proceedings dictate that all arguments and exhibits must be submitted at the earliest possi- ble moment. Arguments and exhibits submitted at a later stage may be disregarded by the court. 2.12 Representative or Collective Action Class actions can be brought in the Netherlands, including in relation to patents. The Dutch class action system (WAMCA) allows representa- tive organisations to file collective claims on behalf of affected individuals. To be admissible, the claimant organisation must be a non-profit foundation or association and sufficiently repre- sentative of the class. Additionally, strict statu- tory and governance requirements must be met to ensure proper representation. These require- ments under WAMCA are designed to prevent
a claim culture. Collective actions in IP cases remain generally uncommon. 2.13 Restrictions on Assertion of an Intellectual Property Right The owner of a patent right may face restric- tions when asserting their rights, including the following. • The enforcement of patent rights must com- ply with competition laws, prohibiting unfair competition practices. • Additionally, the enforcement of standard- essential patents (SEPs) may be subject to FRAND obligations, requiring patent holders to offer licences on fair, reasonable and non- discriminatory terms. • In certain exceptional cases, enforcing a pat- ent may be deemed an abuse of rights, such as when the sole purpose is to cause harm to another party. • Furthermore, a national patent cannot be enforced if a European patent for the same invention has been granted for the Nether- lands and has passed the opposition phase. 3. Infringement 3.1 Necessary Parties to an Action for Infringement In principle, only the patentee (including co- patentees, unless agreed otherwise) can bring an infringement action before the Dutch court. Licensees need a specific litigation power of attorney from the patentee to seek an injunc- tion or other remedies to stop the infringement. In December 2024, the Dutch government pub- lished an explanatory memorandum outlining proposed changes to modernise the Dutch Pat- ent Act. While not yet in force, one of the expect- ed changes is to grant licensees the authority to
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