INTRODUCTION Contributed by: Andreas von Falck, Hogan Lovells International LLP
The Netherlands As mentioned above, 2024 marked the first full year of UPC decisions. The Netherlands was strongly represented amongst the judges, with Dutch judges ranking amongst those with the highest number of decisions. In parallel, Dutch courts (relying, in part, on the same judges) continued to deal with patent cases render- ing decision that will have an impact not only domestically but also beyond the borders of the Netherlands. Following a decision of the Court of Appeal in preliminary injunction (PI) proceedings of 15 August 2023, on 30 October 2024, the District Court of The Hague in proceedings on the mer- its now had to deal with the patentability of the compound apixaban. The District Court applied the tests of decisions G 2/21 (plausibility) and G 1/22 and G 2/22 (entitlement to priority) of the Enlarged Board of Appeal of the European Pat- ent Office (EPO). The test of G 2/21 entails that the patentee can rely on the invoked technical effect for inventive step if the skilled person, having the common general knowledge in mind, and based on the application as originally filed, would derive said effect as being encompassed by the technical teaching and embodied by the same originally disclosed invention. According to the Court, the term “would derive” does not mean anything different than “derivable” and “technical teaching” is an instruction addressed to a skilled person as to how to solve a particu- lar technical problem using particular technical means. There is no general requirement that an application must contain evidence of the effect and in the case at hand the skilled person would also not have reasons to doubt it. With refer- ence to decisions G 1/22 and G 2/22, the District Court noted that there were no indications put forward that would lead to the strong rebutta- ble presumption of entitlement to priority being
set aside. The 2003 decision in PI proceedings is being appealed to the Supreme Court, the recent advice of the Advocate General being that the appeal should be rejected. Stay tuned. Earlier in the year, on 1 March 2024 the Dutch Supreme Court in a case on a children’s toy issued a decision on claim interpretation and equivalence. Central to the appeal was whether a “two-step-approach” to infringement, in which literal infringement is assessed separately from infringement by equivalence, was compatible with the fair protection for the patentee pre- scribed by the protocol attached to Article 69 of the European Patent Convention (EPC). The appellant felt that a “one-step-approach”, in which both literal infringement and infringement by equivalence were to be assessed simultane- ously in one step ought to be more compatible. The Dutch Supreme Court considered that the protocol was compatible with both approach- es, upholding an earlier decision of the Court of Appeal of The Hague. This marks the first Dutch Supreme Court decision which explicitly upholds a Court of Appeal decision that uses the equivalence test introduced by the Court of Appeal of The Hague in the permetrexed case. Noteworthy is that this is the same test that the Local Division The Hague of the UPC applied in the Plant–E/Arkyne case. It may shortly prove influential in UPC Divisions across Europe. Finally, following amendments to the Dutch Pat- ent Act to bring it in line with certain provisions of the UPC Agreement, new amendments are being proposed. The new amendments would introduce a fully examined Dutch patent (where currently the Netherlands only has a registration system for national patents). This follows earlier changes in surrounding countries. Consultation on the proposal is ongoing.
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