The PI judge in the District Court of The Hague held that under certain circumstances, provisional cross-border jurisdiction can be derived from art. 31 Regulation (EC) 44/2001, which would require a “real connecting link” between the sought measures and the jurisdiction of a contracting state (ECJ C-391/95, Van Uden/Decoline). However, in the present case there are insufficient connecting points for such cross border preliminary injunction, since it’s initiated exclusively against parties without residence in the Netherlands.

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The PI judge in the District Court of The Hague held that the processes used to manufacture the generic products in dispute did not fall within the invoked patents’ scope of protection, and particularly that these did not comprise equivalent measures, because the allegedly equivalent substances had significantly different chemical compositions and functionality. Finding the alleged infringing processes to be equivalent would be contrary to legal certainty.

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The Court of Appeal held that the duty to compensate the successful party’s legal costs in intellectual property proceedings, pursuant to Art. 14 of the Enforcement directive, also applies to invalidity claims, counterclaims and defenses by the alleged infringing party threatened with patent enforcement. To deny such compensation in respect of nullity claims or defenses that constitute an important defense against enforcements of intellectual property rights would be contrary to Article 6 ECHR.

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The Court of Appeal held that Roche c.s. infringed the patent. Test results regarding the allegedly infringing product were admitted as evidence because Roche’s arguments were held insufficient to render these tests unreliable. Furthermore, the court ruled that it has jurisdiction to decide on the infringement in Germany based on Art. 24 EC 44/2001, because the amended German part of the patent was held valid by final judgment between the same parties in Germany.

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The Court decided it has jurisdiction in preliminary proceedings in respect of the alleged unlawful act by a Dutch company, consisting of facilitating – as the holder of a marketing authorization – its Portuguese fellow subsidiary to infringe the Portuguese part of a European patent and corresponding SPC in Portugal, based on Article 31 EC 44/2001 with reference to the ECJ 12 July 2012, C-616/10, Solvay/Honeywell. The court considers the Portuguese part of the patent provisionally valid according to Portuguese law, and infringed by the Portuguese subsidiary in Portugal. Hence the Dutch company holding the market authorization for the Portuguese company acts unlawfully and is enjoined.

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The Court of Justice ruled that claims against different companies located in different Member States marketing the same product regarding infringement of a a European patent in one jurisdiction were so closely connected that they may be decided jointly to prevent irreconcilable judgments in the sense of Art. 6(1) EC 44/2001. In the present circumstances, a provisional judgment regarding the validity of a patent on the basis of Art. 31 EC 44/2001 is not prohibited by Art. 22(4) Regulation 44/2001, because it regards only a provisional finding.

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