NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
Injunction The most commonly awarded remedy in pat- ent infringement cases is an injunction, typically requiring the defendant to cease infringing the patent, often subject to penalty payments for non-compliance. In certain cases, cross-border injunctions are awarded by the court. Damages Damages can also be awarded as remedy for patent infringement. The amount of damages is generally determined in separate proceedings, though they can also be assessed as part of the main case. In the Netherlands, damages are compensatory, not punitive, meaning there is no provision for enhanced damages for wilful infringement. The damages may be calculated using various methods, including: • lost profits; • reasonable royalties; and • surrender of the infringer’s profits Other Available Remedies Other available remedies include: • recall orders; • orders for the surrender or destruction of infringing goods; • orders requiring the infringer to publish the court’s judgment; • orders for an accounting of profits gained through infringement; and • orders for the reimbursement of litigation costs (such as legal fees, patent attorney fees and expert fees). The court is limited to the remedies requested by the patentee in the proceedings and cannot
grant remedies beyond those specified in the claim. As such, the judge has no discretion to independently determine remedies outside the scope of what the patentee has requested. Enforcement of the Remedies The general rule is that lodging an appeal sus- pends the enforcement of the first-instance decision. However, plaintiffs usually request that the court make its decision provisionally enforceable, meaning that the remedies can be executed immediately, even if an appeal is pend- ing (see 6.4 Injunctions Pending Appeal ). Such request will in principle be granted. 6.2 Rights of Prevailing Defendants The prevailing defendant will in principle be enti- tled for reimbursement of the costs incurred in the proceedings (see 8.3 Responsibility for Pay- The remedies as listed in 6.1 Remedies for the Patentee are available to patent infringement. 6.4 Injunctions Pending Appeal The general rule is that if a patent is found valid and infringed at first instance, an appeal against that decision suspends the enforceability of the injunction pending the outcome of the appeal. However, plaintiffs usually request that the court declares its decision provisionally enforceable, meaning that the remedies can be executed immediately, even if an appeal is pending. The requests are usually granted. This allows for enforcement without waiting for the appeal period, and once an appeal is filed, enforcement proceeds without delay. ing the Costs of Litigation ). 6.3 Types of Remedies
368 CHAMBERS.COM
Powered by FlippingBook