A court in the Netherlands has briefly allowed LG Electronics to seize the entire supply of Sony's Playstation 3 (PS3) in the Netherlands. The seizure was based on infringement of an LG patent on the Blu-ray player in the PS3. The order was given ex parte, without first hearing Sony. In subsequent inter parte proceedings, another court lifted the seizure.
The seizure was remarkable because both LG and Sony participated in Blu-ray standardisation, and LG is under the obligation to license the patent. The seizure appears to be meant as a blow from LG in a worldwide battle with Sony about a much broader licence agreement. The court was aware of this, but it had no discretion to refuse seizure.
The Netherlands provides for a number of ex-parte provisional remedies against patent infringement. Most of these remedies derive from EU Directives, such as the EU IP Enforcement Directive and the EU Customs Directive. However, these directives allow the court and Customs authorities some discretionary power. For example, it is commonly assumed that the court will not issue ex-parte injunctions under patents unless validity and infringement are sufficiently certain.
In the present case, LG relied on its right to a court measure to provide security that a party performs its (future) obligations. Such measures are not particular to patent law, and according to Dutch case law, the court has hardly any discretion to refuse such a measure. LG tied this measure to patent law by pointing out that under patent law Sony might be obliged to turn over all infringing products if it had never obtained a licence.
The court seemed to be unhappy about having to order this seizure. Unusually, as part of the decision to grant the request, the court included an excerpt from an e-mail from LG's attorney to the judge, which insisted on LG's right to choose whatever measure it wanted. Possibly in response to qualms from the judge about the extremity of the requested measure, LG pointed out that the court has no discretion to dispute LG's choice of the measure, nor the right to make presumptions about Sony's response.
Sony's response was that it immediately started inter-parte proceedings to lift the seizure before the specialised patent court. This court lifted the seizure as well as a parallel customs seizure. Moreover, the court enjoined LG from attempting any more surprise seizures.
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| Lars de Haas |
Vereenigde Octrooibureaux NV
Johan de Wittlaan 7, 2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99
patent@vereenigde.com
www.vereenigde.com