Dutch courts see increase in patent revocations over 2018

Over 2018, both the District Court and the Courts of Appeal ruled on a series of judgments. Of those, 13 cases (84%) in the District Court saw the revocation of the patent from its owner. In the Court of Appeal, four cases were rendered with three (75%) resulting in the patents being revoked.

Eelco Bergsma

Of the latter category, two led to partial revocation of the patent in suit and the requests for an injunction being denied. In the remaining case, the defendant did not request revocation. Instead, the defendant only argued invalidity, defending itself against claims of infringement which was followed by the District Court.

The research, conducted over 2018 by the Netherlands office of Taylor Wessing, follows a similar pattern to the number of patent cases revoked over the two years prior. Combining the statistics for 2016 and 2017, the patent cases revoked by the District Court of The Hague and the Court of Appeal amounted to 60% and 69%, respectively.

Future predictions

Despite the findings, however, Eelco Bergsma, counsel at the Eindhoven office of Taylor Wessing, believes this trend is unlikely to continue. In fact, says Bergsma, the variety in patent cases means the Dutch courts will be as diverse as ever in the cases – and outcomes – they review.

“Taken on a case-by-case basis, it is true that 2018 has not been the most successful year for patent owners in the Netherlands,” says Bergsma. “However we do not expect this rise in revocation to be a downwards trend – patent litigation is unpredictable, and different cases might mean we see a totally different pattern for 2019.”

Although Taylor Wessing’s most recent research is potentially negative for patent owners, over 2018 the Netherlands has played host to some of Europe’s most important cases. Currently at the forefront is the ongoing Nikon v. ASML battle, with more than twenty cases brought before the District Court of The Hague by both parties – a unique occurrence in the Netherlands.

In total Dutch lithography system manufacturer ASML faces eleven claims brought last year by Nikon. ASML responded by filing its own suit with leading Dutch law firm Hoyng ROKH Monegier, accusing Nikon of infringing more than ten ASML patents in the manufacture of semiconductors, flat screens and digital cameras. ASML also filed nullity suits against the Nikon patents, with further speculation that ASML has recently filed up to ten more cases.

In 2018 the District Court of The Hague rendered its decision in four of those cases, all denying the injunctions requested by Nikon. Three of these ruled the Nikon patent invalid; in the fourth case, the validity was not judged, with ASML found to not have infringed the Nikon patent. The remaining cases are expected to be announced over 2019 and 2020.