NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
bring an infringement action before the Dutch court, unless otherwise agreed. The patentee may claim damages on behalf of exclusive or non-exclusive licensees and pledgees. Licensees and pledgees may join an infringement action as co-plaintiffs for damages if the patentee commences the action. They may also bring an independent claim for damages against an alleged infringer, provided that they are authorised by the patentee to do so. 3.2 Direct and Indirect Infringement In the Netherlands, a patent owner can enforce its patent against direct and indirect infringe- ment. Direct Infringement Direct infringement occurs when a third party performs any of the following acts, in the course of business, without the consent of the patent holder, within the territory of the Netherlands: • manufacturing, offering for sale, marketing, or using a product that falls within the scope of the patent, or importing or stocking such products for these purposes; • using a process that is covered by the patent or offering to use the process; and • offering, marketing, using or importing a product obtained directly through a patented process. Direct infringement requires that the infringing product or process implements all the features of the asserted patent claim, as outlined in the patent, including equivalents (also see 3.4 Scope of Protection for an Intellectual Property Right ). Indirect Infringement Indirect infringement occurs when a third party supplies, without the patent holder’s consent,
means for carrying out the patented invention. This includes providing essential components of the invention, as long as the third party knows or should know that these means are intended to be used for infringing the patent. The territorial scope of the prohibition on indi- rect patent infringement is limited. Indirect infringement occurs when offering or supplying the means in the Netherlands, Curaçao or Sint Maarten for use of the invention in that territory. However, an offer from abroad directed at some- one in these territories is also relevant. However, this provision does not apply when the means are generally available in the market unless the third party encourages or induces the buyer or user to commit an act of direct infringe- ment. 3.3 Process Patents Infringement of process patents is subject to the same general rules as other types of pat- ent infringement. Products made directly by a patented process enjoy the same protection as patented products. If a product is made by a patented process outside the Dutch jurisdiction and this product is imported in the Netherlands, this could still constitute an infringement if the process used to make the product is protected by a Dutch patent. A particular challenge in process patent cases could be the burden of proof, where in principle the patentee bears the burden of proving that the allegedly infringing product was directly obtained from a process protected by the claims of the patent. If the infringement concerns a pat- ented process for the manufacture of a product which is itself new, the product in question is
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