The Netherlands: Rusk indentation patent does not cause a dominant position

January 27 2017

On December 19 2016 the court in Arnhem decided in preliminary relief proceedings about a patent situation, based on competition law.

The case relates to a patent on a flat baking having an edge indentation. The invention allows a consumer to easily take a rusk out of a tightly packed roll of stacked rusks, without breaking the rusk. This is simply done by inserting a fingertip in the rusk indentation.

Licence agreements exist for several years between the patentee (a Dutch inventor) and two different Dutch bakeries, who are selling rolls of the patented rusks. Recently, another bakery requested to enter into licence negotiations. The patentee refused. The bakery initiated preliminary relief proceedings and demanded a right to enter into licence negotiations, based on competition law. The bakery argued that the patent would give the patentee a dominant position in the relevant market. It was further argued that the patentee's refusal of licence negotiations would be an abuse of the alleged dominant position.

The court considered that various specific rusk packings exist designed for easy removal of stacked conventional rusks not having the patented indentations. For example a roll-packing exists having a kind of zipper, which facilitates reliable removal of conventional rusks from the tight roll-packing. Furthermore it was considered that conventional rusks are available in the market in loose bags, in which case the problem related to removing rusks from a tightly packed roll does not exist. Thus, the court concluded that real and adequate alternatives are available to be active in the same market. Already for these reasons, the court concluded that in the present case there is no question of a dominant position in the relevant market. Accordingly, the court decided that the licence negotiations are not enforcable.