On January 8 2010 a remarkable ex-parte injunction order in a patent case was issued in summary proceedings at the Court of The Hague.
Ex parte means that, on a request from (or on behalf of) the holder of an IP right, an injunction against the alleged infringer may be issued in summary proceedings without the alleged infringer being heard.
Although there is a legal basis for such orders, ex-parte injunctions are very rare in patent cases. The reason is that the requirements with respect to urgency and legal foundation of the case at hand are even more severe than for normal inter-partes summary proceedings. As for the legal foundation it has to be prima facie plausible that the IP right is both valid and infringed. If the IP right is a patent, both validity and infringement issues usually require thorough examination and technical expertise. This renders the fulfilment of the prima facie criterion usually unfeasible.
In the present case, Razor USA LLC owns European patent EP1511541. Its licensee, Street Surfing LLC, was entitled to take actions against infringers of the patent. The patent relates to a special kind of skateboard having a front board and a rear board being elastically interconnected. Each of the front and rear boards is provided with one or more specifically arranged castor wheels. The patented skateboard offers improvements with respect to steerability and acceleration.
Street Surfing commercially exploits the patented skateboards. On January 4 2010 it requested from the court an ex-parte injunction against an alleged infringer. The other party was alleged to exploit the patented skateboards, including via websites.
In the court ruling, irreparable damage suffered by Street Surfing LLC was a decisive factor in assuming the required extreme urgency of the case. As for the legal foundation requirements, the court could refer to earlier (inter-partes) summary proceedings between Street Surfing and the same alleged infringer. In these earlier proceedings it was provisionally held by the same court on December 2 2009 that both patent validity and infringement, with technically identical products as in the present case, were plausible.
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| Karel de Jong |
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