NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
presumed to have been manufactured by the patented process, unless the defendant can plausibly prove that this is not the case. 3.4 Scope of Protection for an Intellectual Property Right The scope of protection of a patent is determined by its claims, in accordance with Article 69 of the European Patent Convention (EPC) and the Interpretation Protocol. The extent of protection conferred by the patent will thus be determined by the claims and the description and drawings shall be used to interpret the claims. The courts seek to balance fair protection for the patentee with legal certainty for third parties. Literal Infringement The scope of protection is assessed from the perspective of a person skilled in the art, using their general knowledge as of the priority date or the filing date. Courts interpret the claims with consideration of the description and drawings, aiming for fairness to both the patent holder and third parties. Whether a product or process falls within the scope of the patent, is assessed by determining how the person skilled in the art, using their common general knowledge, would have interpreted the claim(s) on the priority date. Equivalent Infringement The doctrine of equivalents allows protection beyond literal infringement. According to the Interpretation Protocol, “due account shall be taken of any element which is equivalent to an element specified in the claims.” If the allegedly infringing product or process does not literally fall within the scope of the claims, but contains equivalent elements, it may also constitute infringement of the patent.
In the 2020 Pemetrexed case, the Court of Appeal of The Hague outlined a four-step test to determine if an infringement falls under the scope of equivalents, which have been applied in several decisions since. The court will con- sider the following principles. Technical equivalence For infringement, the different feature must be technically equivalent to the claimed feature. Courts usually determine equivalence by apply- ing the “function-way-result” test, assessing whether the element in the infringing embodi- ment essentially fulfils the same functions in essentially the same way with essentially the same results. In pharmaceutical and chemical cases, the courts sometimes also use the “insubstantial differences” test, which assesses whether the person skilled in the art would consider the dif- ference between the claim limitation and the alleged equivalent feature of the accused prod- uct to be insubstantial. However, this test is less common than the function-way-result test. Fair protection for the patentee The scope of protection should correspond to the contribution the patentee has made to the state of the art. It should be reasonable for the skilled person to consider applying equivalent elements in place of the claimed feature. Reasonable legal certainty for third parties Third parties should be able to rely on the con- tent of the claims. If the claims are unclear, they may not be expected to consider equivalent ele- ments. Novelty and inventiveness of the equivalent The alleged equivalent itself must be new and inventive. Otherwise, it would be possible to
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