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The Netherlands: Court rules on remedies for contributory infringement in Europe

A Dutch court issued decisions in two court actions that illustrate the remedies that are available from the Dutch courts in cases of contributory infringement. The court found that it had jurisdiction to issue a preliminary injunction on offering and supplying a contributorily infringing product inside and outside the Netherlands, also against a non-Dutch party. The patent acts throughout Europe were essentially identical on contributory infringement. However, the court held that patent law excluded an injunction on holding a contributorily infringing product in stock.

In Rasco v AEBI Schmidt (Court of The Hague, January 4 2017), Rasco supplied a detachable salt spreader for use on trucks to de-ice roads. AEBI Schmidt asserted that trucks with such a detachable salt spreader infringed its patent. The court found contributory infringement, because it considered the salt spreaders to be "essential components" in the sense of contributory infringement law, and ordered a recall. However, the court held that holding in stock of such essential components, which contributorily infringed but had not been patented themselves, was not prohibited by Dutch patent law: patent law only prohibited offering and supplying such products.

In DSM v Univar and Novozymes (Court of The Hague, January 6 2017), the patent claimed a process to produce a dairy product using a previously known lactase preparation. The Danish company Novozymes manufactured the lactase preparation. The Dutch company Univar was Novozymes' exclusive co-distributor for Europe. The Dutch court found that it has jurisdiction to issue a preliminary injunction inside and outside the Netherlands against Univar, because it was a Dutch company, and also against Novozymes, because the action concerned the same product. The product had a substantial non-infringing use, but evidence showed that Univar and Novozymes induced infringement. Accordingly, the injunction was limited to offering/supplying the lactase preparation for use in the patented invention.

Lars de Haas

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

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