In infringement cases the burden of proof lies with the patent proprietor, but it is often difficult to prove that the infringer is indeed using the patented method.
In a recent Dutch case (Astellas Pharma v Synthon, Court of East-Netherlands, February 1 2013) the question was whether the patent proprietor could have access to material that had been seized by a bailiff. This material consisted of (at least) four discs with "possible relevant digital files" according to the bailiff's report. This seizure was allowed on the basis of the allegation that infringing material had been marketed in Spain and that on this material Synthon was indicated as the manufacturer.
Astellas filed a request for gaining access to this seized evidence. In the decision, the judge argued that access can only be provided (also according to the EU Enforcement Directive 2004/48/EG) if infringement has been made sufficiently credible, and if no other evidence is available. Of course the confidentiality of the seized material is an issue that can prevent access.
With respect to the credibility of the infringement, there were conflicting reports of party experts whether or not the products that were marketed fell within the scope of the claims of the European patent. The judge concluded that infringement was certainly an open issue, but that for access to the material the credibility of infringement is not as stringent as for getting an injunction. In the present case, the possibility that the material was infringing was found sufficient.
Further weight was given to the fact that the defendant had not indicated why the material was confidential. Astellas certainly had a right to gain information on the production and distribution of the allegedly infringing products. Further, the safeguard offered by Astellas that its attorneys would hold all information confidential until Synthon allowed access for Astellas was acknowledged by the judge, but under sanction of an astreinte. The judge also ruled that for information showing the infringement of Synthon, no access could be denied on the basis of confidentiality.
Amazingly, the costs that Astellas had made for obtaining the present decision, which were estimated at €175,000, had to be paid by Synthon in full.
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Bart van Wezenbeek |
V.O.
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The Netherlands
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