In the framework of a less "communal" view of intellectual property which is evolving in various countries of the European Union, two Dutch courts have recently affirmed their power to issue injunctions in patent cases with international effects.
One week after the Court of Appeal of the Hague had found that there was no "evident error" in the previous decision of the District Court by which the latter declared itself competent in a case regarding foreign defendants having allegedly breached foreign patents, the District Court of the Hague again asserted its power to issue extra-territorial injunctions. With regard to the first of these cases, Murex/Chiron (Court of Appeal of the Hague, 07/12/95), the President of District Court, in May 1995, granted an injunction to three companies of the foreign group Murex - codefendants of Dutch Murex - to refrain from further breaches of Chirons Hepatitis-C patent in Italy, France and Spain. The decision was appealed and an application was made for the annulment of the part of the injunction referring to abroad.
The Court of Appeal, in a brief decision, announced that it did not recognise "evident error" in fact or in law in said decision of the President of the District Court. According to the Court of Appeal's decision, Article 6.1 of the Brussels Convention does not exclude the correctness of the President of the District Court's opinion.
The ratio decidendi of the Court conflicts with the judgment of the European Court of Justice in Shevill/Allianz Presse case, which stated that Article 5.3 of the Brussels Convention - which, like Article 6. 1, represents an exception to Article 2 - should be strictly interpreted. The appeal of the Murex/Chiron case will result in a new decision which will be given possibly this quarter.
In the second case under examination, Hoffman-La Roche/Organon Teknika, the President of the District Court of the Hague, in an elaborate decision given on 14/12/95, declared himself competent according to Article 6.1 of the Brussels Convention in relation to eight foreign branches of Azko-Nobel that, according to Hoffman-La Roche, breached a European patent relating to the amplifications of the DNA sequence. The application for an injunction was rejected because the President did not find the actual existence of a breach, but he nevertheless felt that the case had to be adjudicated on its merits.
In Italy, however, the traditional opinion is still largely dominant, so it is commonly considered necessary to institute legal proceeding in the courts of all of the individual countries where the counterfeiting (production, placing into the market) is in act or has taken place; it is worth mentioning, on the other hand, the considerable influence of any judgements which the plaintiff may have already obtained abroad over the Italian courts, especially with regard to the summary and abridged proceedings originated with respect to applications for provisional remedies and urgent measures.
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