Managing IP is part of the Delinian Group, Delinian Limited, 8 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2023

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

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

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.


Karel de Jong

V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67

more from across site and ros bottom lb

More from across our site

The Supreme Court, which is hearing two IP cases this week, should limit the power of US courts to rule on foreign sales
Safety standards wouldn’t lose copyright protection when named in law, so long as they were accessible for free online
In-house tech sources say Amgen v Sanofi has the potential to stifle their prosecution and litigation strategies if SCOTUS’s decision is too broad
We provide a rundown of Managing IP’s news and analysis coverage from the week, and review what’s been happening elsewhere in IP
The Federal Circuit said tech firms can challenge the way the USPTO implemented Fintiv, but that won’t mean much for practitioners, say counsel
The England and Wales High Court handed down one of the most hotly anticipated FRAND rulings for some time
Funders discuss different IP portfolio funding options and how they decide whether to offer preferential terms and pricing
The issue of the Unified Patent Court’s third central division needs resolving before IP owners can fully embrace Europe’s new era
Foreign firms and lawyers, including IP practitioners, can now practise in India after years of talk and no action
Most Indian counsel won’t immediately look beyond the Delhi High Court for IP cases, but new forums could potentially change their minds