NETHERLANDS Trends and Developments Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
The doctrine of equivalence On the 22 November 2024, the LD of The Hague applied the unique Dutch doctrine of equivalence for the first time in the Plant-e v Bioo case. The doctrine of equivalence allows courts to extend the scope of patent protection beyond the literal wording of the claims, provided that the alleged infringement achieves the same technical result using equivalent means. Although the Unified Patent Court Agreement (UPCA) does not explicitly mention the doctrine of equivalence, the Court follows Article 69 of the European Patent Convention (EPC) and the Protocol in relying on the two-step test to assess the scope of patent protection and to determine infringement. First, literal infringement of the features of the patent in view of the claim construction is evalu- ated. If no literal infringement can be found, the Court then considers equivalence as step two. The LD of The Hague has followed the approach of the Dutch national courts, in particular the decision in the Pemetrexed case in 2020 and later in 2022 (Pharmathen/Novartis), both judged by Judge Peter H Blok. The approach followed in the Pemetrexed case was upheld by the Dutch Supreme Court in 2024, which stated that this approach does not violate Article 69 EPC. In both cases, the Court asked four key ques- tions to determine equivalence. If these four questions are answered in the affirmative, then a variation is equivalent to an element specified in the claim. • Technical equivalence: does the variation solve (essentially) the same problem that the patented invention solves and performs (essentially) the same function in this context?
Introduction Following the launch of the Unified Patent Court (UPC) in 2023, 2024 was the first full year of activ- ity. The Dutch Local Division (LD) in The Hague has already handled several cases, including the Plant-e v Bioo case, in which the unique Dutch doctrine of equivalence was applied for the first time. Meanwhile, the Dutch government is modernis- ing its Dutch Patent Act, with changes proposed, particularly the introduction of mandatory patent examination before grant. The UPC The UPC officially began operations in 2023, with 2024 marking its first full year of activity. One of the most notable developments this year has been the Court’s handling of cases across its various LDs, including the Dutch LD in The Hague. By the end of 2024, the UPC had received 635 cases in total, with the majority pending in the German Local Divisions (Munich, Dusseldorf, Mannheim and Hamburg). In contrast, the Dutch LD in The Hague received a more modest number of 23 cases, including 12 infringement actions, seven counterclaims for revocation, three applications for provisional measures, and one application for preserving evidence. The introduction of the UPC has brought new opportunities for patent holders to enforce their rights across multiple European jurisdictions with a single court action, but it has also pre- sented new challenges, such as the different interpretations and approaches taken by the various LDs, particularly in relation to the doc- trine of equivalence.
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