The Netherlands: The effects of lack of harmonisation

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Cookies Settings

The Netherlands: The effects of lack of harmonisation

A number of court cases were recently and are still playing between Becton Dickinson (BD) and Braun on the validity and infringement of EP 2319556 related to a needle tip for hypodermic needles.

These cases show that a harmonised court system (such as the Unified Patent Court) is needed to come to uniform decisions all over Europe.

The patent was granted in 2013 and attracted an opposition by BD, which was rejected by the opposition division of the European Patent Office. The appeal against this decision from BD was also rejected and the patent was maintained as granted.

Already during the opposition and appeal, Braun started several court actions. In a first instance case in Germany, the Düsseldorf court decided that the patent was infringed by BD. An appeal against this decision is pending. In relation to these German proceedings, a revocation suit was filed with the court in Munich and in a preliminary opinion this court decided that the patent lacks novelty and inventive step. The same case was filed in Austria and there the first instance court did not provide an injunction. However, on appeal the Austrian Supreme Court decided that the patent was valid and infringed. Also in Belgium a case has started but no decision or preliminary opinion is available yet.

In the present (first instance) case in The Netherlands (Court The Hague, September 6 2017, ECLI:NL:RBDHA: 2017:9997) the court has decided that the patent is invalid. However, in contrast to the decision in Germany, the basis of the invalidity was formed by extension of subject matter and lack of inventive step.

The decision on basis of extended subject matter is remarkable, since the interpretation of the technical content of the claims deviates from the interpretation of the Board of Appeal of the EPO. According to the Dutch court the intended interpretation as now used for the claims was not directly and unambiguously derivable from the application as filed.

Although a number of court cases (including the present Dutch one) have not been finally decided and appeals are pending, the case again illustrates that national courts and the EPO Board can come to deviating decisions on the same European patent. The case thus again illustrates the need for a Unified Patent Court.

Bart van Wezenbeek



V.O.

Johan de Wittlaan 7

2517 JR The Hague

The Netherlands

Tel: +31 70 416 67 11

Fax: +31 70 416 67 99

info@vo.eu

www.vo.eu

more from across site and SHARED ros bottom lb

More from across our site

The chief technology officer remit, which has been created as the firm is building its litigation team, will include expanding the use of AI in patent and legal work and automating manual processes
Former Hoyng Rokh Moneiger partner Laura Alonso, who brought her team to ECIJA in March, discusses plans to expand further and why ECIJA’s ‘IP DNA’ is helping broaden her work
Amita Haylock discusses building an integrated Asia practice as clients increasingly demand that firms combine IP, technology and data expertise
François Pochart, Grégoire Desrousseaux and Lionel Martin, long-standing figures in the firm’s patent litigation team, are set to help launch a Paris-based litigation offering
The Unitary Patent has passed 100,000 registrations, but new data raises the question of whether 30% uptake is a ceiling or a staging post for further growth, say Michael Nielsen and Darren Smyth of EIP and Andrew Samm at Patently
The new generation of in-house IP leaders want commercial judgment, accessibility and flexibility, with AI raising expectations around both fees and delivery
The firm launched a San Diego office earlier this month, but California investment and expansion is far from complete
The industry’s response to AI requires an unfamiliar ingredient as firms battle to shape their futures
The firm is looking beyond replacing recently departed talent, betting instead on senior leaders to strengthen and expand its patent litigation platform
Olga Partington, director in Sterne Kessler’s biotechnology and chemical practice group, shares why a patent's vulnerability peaks when it is young, rather than when it is most valuable, under the PTAB's new framework
Gift this article