Then there were three: Dutch patent market serious challenger in Europe

The Dutch patent market has long been a source of innovation. When the Dutch partners of Hoyng Monegier and the German partners of Reimann Osterrieth Köhler Haft decided to join forces in 2015, the effects were felt far beyond the Netherlands and Germany. A mega-boutique for IP emerged. Hoyng ROKH Monegier became a counterweight to top teams in international law firms such as Allen & Overy, Bird & Bird and Hogan Lovells.

The new outfit was the first of its kind. It boasted top practices in Germany, France, Spain, Belgium and the Netherlands. Then, in 2018, the top-tier French IP law firm Véron & Associés also joined HRM’s Paris team.

Now, the HRM abbreviation is established among European patent lawyers. This is because HRM is now just as active in major pan-European patent battles as firms such as Bird & Bird and Hogan Lovells. HRM is a solid alternative when it comes to conducting patent litigation in several jurisdictions simultaneously for one client. But it also plays a leading role in the lucrative business of coordinating cases at European level.

Dutch patent market to the world

HRM represented Dutch company ASML, and its German supplier Carl Zeiss SMT, in a global battle against Nikon. The case concerned giant optical-exposure machines for producing computer chips. The dispute was ended by both opponents in 2019.

Currently, HRM represents Ceva Santé Animale in four jurisdictions in another cross-border case against Bayer AG concerning veterinary medicine. Although Ceva is a core client of the Paris office, the firm conducts important proceedings before the German and Dutch patent courts.

Furthermore, HRM sued various mobile phone manufacturers in the Netherlands and France over standard essential patents. The claims were filed on behalf of Dutch electronics giant Philips, a central client of HRM’s Amsterdam office.

Willem Hoyng

It is here that the HRM project began, headed by veteran Willem Hoyng. Even early on, his firm operated at the top of the Dutch market. But the name partner already has a reputation for international thinking. The partnership had already established offices in Brussels, Paris and Madrid.

In 2015, when Hoyng Monegier merged with its German counterpart, the UPC seemed likely. At this time, many law firms were gearing up for the new court. It seems a likely motivation behind the merger.

And, with both patent lawyers and patent attorneys authorised to lead infringement cases, all firms hoped to benefit from the UPC.

More than it seems

However, during the 2015 merger both the Dutch and German partners of HRM stressed that it was not solely down to the UPC. Rather, the firm was interested in international IP business in general. Five years on, the launch of the UPC is more uncertain than ever. But the partners’ prediction of an increase in cross-border cases was correct.

The Dutch patent courts in The Hague play an important role in many such cases. A current example is the disputes between Philips and several mobile phone manufacturers. Another example is the global dispute between AB InBev and Heineken over beer dispenser technology. In the Netherlands, The Hague is home to all three courts for patent proceedings.

The Hague to the fore

The Hague hears pharma cases on a rolling basis. Whenever the patent protection for an important drug expires, the original manufacturer will most likely sue in The Hague. This is to keep generic and biosimilar manufacturers out of the lucrative Dutch healthcare market for as long as possible. Hoffmann La-Roche, for example, is currently fighting over the cancer drug Herceptin and Eli Lilly over pemetrexed.

The patent courts also come into play whenever infringing products are imported into Europe, via the port of Rotterdam. If patent owners want rapid success from experienced patent judges, the Dutch patent courts are a serious alternative to the German courts.

For example, it is noticeable that Sisvel is less likely to file lawsuits in German courts. However, it has launched a major campaign against various Chinese mobile phone manufacturers in the Netherlands.

An upside to UPC drama

In recent discussions with JUVE Patent, in-house attorneys – especially from the mobile phone industry – emphasise how interesting the Dutch patent courts are for litigation strategies. This importance may well continue to grow; the role of the London courts in the European patent landscape remains unclear.

Should the UPC launch as a continental version without the UK, observers believe the Dutch courts will take on further significance. The courts in The Hague could then counterbalance Germany’s strong patent courts. London courts are still playing this role – for now.

Recently, an in-house lawyer for a major mobile phone company told JUVE Patent, “We are closely monitoring the activities of the courts in The Hague because we always need an alternative if we cannot or do not want to sue in Germany.”

Furthermore, the Dutch patent courts now have considerable experience in SEPs and FRAND disputes. This is mainly due to the many suits filed by Philips and Sisvel.

The Dutch patent judges, litigators and patent attorneys are more than capable of rising to the challenge. The European market considers the Dutch lawyers pro-European and very internationally-oriented. Certainly, their British, German and French counterparts do not doubt the quality of expertise.

Heavy love affair

As the second Dutch market leader, recently Brinkhof has also moved towards more international business. However, unlike HRM, Brinkhof has not gone the route of an international merger. This is despite the firm having long flirted with the idea.

It is also no secret that the Amsterdam boutique has very close ties to UK law firm Bristows, and German firm Vossius & Partner.

Competitors repeatedly speculate that, in the event of a UPC launch, the next IP mega-merger in Europe could take place between the three heavyweights. After all, the firms have been jointly preparing their clients for the UPC via seminars for years. But the firms have never officially confirmed their love affair.

But since the German Constitutional Court put the UPC project on ice, Brinkhof is refocussing more on its independence.

However, breaking strong bonds is not easy. Brinkhof still appears alongside Bristows and Vossius in cross-border disputes, most recently for Heineken against AB InBev. Together with Vossius, Brinkhof is active for Wiko in mobile phone lawsuits.

A varied approach

Although the Dutch patent litigation market is led by two boutiques, their focus could not be more different. Brinkhof positions itself as a national boutique with a strong network with other European law firms. On the other hand, HRM operates as part of a strong international alliance.

Koen Bijvank

Both boutiques have strong teams of senior partners. Richard Ebbink and Mark van Gardingen lead at Brinkhof, for example, with Bart van den Broek and Simon Dack guiding HRM. Furthermore, at both firms, the next generation has long been coming to the fore. This is especially true for Daan de Lange at Brinkhof, and Theo Blomme and Peter van Schijndel at HRM.

Both Brinkhof and HRM rely on a mixed approach with patent attorneys. This approach is not yet as widespread in the Netherlands as in neighbouring Germany. Arnold & Siedsma is the third patent firm to operate with lawyers and patent attorneys.

However, HRM took this path very early on. With 16 patent attorneys, it constitutes one of the midsized patent filing practices in the Netherlands. On the other hand, in 2017 Brinkhof hired Koen Bijvank from renowned patent attorney firm Vereenigde Octrooibureaux. Bijvank is one of the best-known litigators on the patent attorney side for biotech disputes and pharma litigation.

However, the firm does not offer patent prosecution. Rather, it focuses entirely on litigation. So far, this is a successful strategy. Bijvank is a key figure for the Broad Institute in the defence of key patents for gene-cutting technology, CRISPR-Cas. The Broad Institute compiled a large team from various law firms for this purpose.

Hot on the heels

Despite their success in the Dutch patent market, the two boutiques have stubborn competitors in Freshfields Bruckhaus Deringer and Hogan Lovells.

In terms of the quality of their track record, the two international law firms are level with the market leaders. For example, Hogan Lovells and Freshfields which advised Nikon against ASML. In addition, both firms are frequently involved in pharma cases filed by original drug manufacturers.

Furthermore, the firms regularly handle mobile phone cases. This is usually on behalf of manufacturers of mobile communication devices. Here, Hogan Lovells is currently ahead of Freshfields with its work for two manufacturers, HTC and BKK, against Philips and Sisvel respectively.

But the two international law firms do not have mixed teams. Classically, the firms work with external patent attorneys who have carved out a good reputation for patent litigation. From the large mass of Dutch patent attorney firms, only half a dozen Dutch firms have earned a reputation for this.

Building on strengths

The Dutch teams of Hogan Lovells and Freshfields benefit considerably from their integration in strong international teams. The patent team of Hogan Lovells is a market leader in Europe. Together with the teams in Germany and London, the Amsterdam lawyers form the core of this strong group.

Freshfields is not as strongly positioned in Paris and London as Hogan Lovells. However, it can build on very close cooperation between its teams in Germany and Amsterdam. This cooperation is reflected in numerous joint instructions. But in both firms, the Dutch teams are not necessarily dependent on the German practice. Rather, their strength lies in cooperation as equals.

However, the teams of both firms are limited in terms of the opportunities for appointing new partners. In full-service firms with a strong transactional focus, patent teams cannot grow at will. This restricts the ability of Hogan Lovells and Freshfields to build broad industry and technology expertise across more partners, when compared with Brinkhof and HRM.

Playing a strong midfield

Bird & Bird and Simmons & Simmons are two other firms with strong European teams in which the Dutch partners are important. But many law firms in the Dutch litigation market’s extremely strong midfield face the same problem. Even though Bird & Bird and Simmons & Simmons have renowned partners in their ranks, important cross-border cases are handled less frequently than by the teams at Hogan Lovells and Freshfields.

Gertjan Kuipers

On the other hand, the patent team of De Brauw Blackstone Westbroek recently demonstrated a strong presence in important cases. In Gertjan Kuipers, the national full-service firm has a very prominent litigator.

His team currently represents Sisvel in numerous lawsuits against Xiaomi, Oppo, BKK and Wiko concerning mobile communication patents.

At the same time, Kuipers represents GSK and Eli Lilly in pharmaceutical cases that would fit in with the track record of some of the big players in the market.

De Brauw Blackstone Westbroek’s market position is the result of clever strategic team positioning. Gertjan Kuipers is at the helm. The patent team is integrated into the firm’s larger litigation group and can draw from a larger pool of associates than comparable firms like NautaDutilh or BarentsKrans.

In contrast to the teams at the latter two national full-service firms, De Brauw can handle more cases across a broad technological spectrum. The firm also handles cases for Jacobs Douwe Egberts concerning coffee capsules, and for Välinge regarding flooring technology.

The good position of three national firms is a USP of the Dutch patent litigation market. Similar firms play no role in the UK. They play only a minor role in Germany and France.

Thus, the teams at De Brauw, NautaDutilh and BarentsKrans can be confident of interest from many German and UK boutiques. Such collaboration will bring the firms additional international business.

Still in focus

Ultimately, the Dutch patent market remains attractive for international litigation practices. Dentons, for example, is currently pushing the development of a European team. In 2019, the firm brought in experienced senior associate Tjibbe Douma from De Brauw Blackstone Westbroek. As a partner, Douma quickly gained a foothold at Dentons. In a short space of time, the young partner has built up a respectable patent practice. Competitors are eyeing this closely.

But Dentons is unlikely to be the last law firm to look for reinforcements in Amsterdam. Law firms such as Herbert Smith Freehills, Pinsent Masons, Gowling WLG and Linklaters are currently pushing their European expansion. However, these firms are not yet active with visible teams in the Netherlands.

In the Netherlands, there are claims that UK law firms in particular are taking a closer look at Amsterdam and The Hague. This is following the UK’s withdrawal from the UPC. The Dutch patent market is a key factor in the European business of cross-border patent litigation.

For further analysis of the Dutch patent market, read our ranking of the top patent litigation firms and the top patent prosecution firms in the Netherlands.

For information about our research criteria, please click here.