Patent Litigation Comparative Guide

1 Legal framework

1.1 Which laws and regulations govern patent litigation in your jurisdiction?

The principal source of patent law is the Patent Act. The Patent Act contains provisions governing:

• patentability;
• prosecution;
• ownership;
• infringement; and
• licensing.

The Patent Act Executive Regulation includes specific administrative provisions relating to:

• the Dutch Patent Register;
• fees; and
• other patent prosecution issues.

The principal source of procedural law for litigation, including patent litigation, is the Code of Civil Procedure.

1.2 Which bilateral and multilateral agreements with relevance to patent litigation have effect in your jurisdiction?

There are numerous bilateral and multilateral agreements that are relevant to patent litigation in the Netherlands. For example, the Netherlands is subject to:

• the Agreement on Trade-Related Aspects of Intellectual Property Rights;
• the Patent Cooperation Treaty; and
• the Paris Convention for the Protection of Industrial Property.

These are relevant to priority claims and procedures for filing patent applications in multiple jurisdictions, including the Netherlands.

The Netherlands is also an EU member state and as such, EU regulations and directives have a significant impact on the patent enforcement landscape in the Netherlands – either directly (eg, the IP Customs Regulation 608/2013) or indirectly through implementation in Dutch law (eg, the IP Enforcement Directive (2004/48/EC)). Other EU instruments that have relevance for patent litigation in the Netherlands include:

• the Medicinal Products Supplementary Protection Certificates (SPC) Regulation (469/2009);
• the Plant Products SPC Regulation (1610/96); and
• the Biotechnological Directive (98/44/EC).

Of material importance for Dutch patent practice is the European Patent Convention 1973 (EPC). The EPC provides for a central application procedure which, if patentability requirements are met, leads to the grant of a European patent. The Netherlands is a party to the enacted Unitary Patent Package – comprising EU Regulation 1257/12, EU Regulation 1260/2012 and the Agreement on a Unified Patent Court – and has ratified the agreement.

Additionally, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters is relevant to requests for seeking discovery from foreign jurisdictions. This multilateral treaty outlines the mechanisms by which judicial authorities in one country can obtain evidence in another country. The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters also provides a framework for serving documents on parties located in another country.

1.3 Which courts and/or agencies are responsible for interpreting and enforcing the patent laws? What is the framework for doing so?

The District Court of The Hague has exclusive jurisdiction over virtually all issues relating to patents in the Netherlands. First-instance decisions are reviewed in full (de novo) by the Court of Appeal in The Hague, without leave or permission being required. The Court of Appeal also has specialised IP judges. The parties can challenge appeal decisions before the Supreme Court of the Netherlands. The Supreme Court can rule on issues of law and legal reasoning, but not of fact.

Case law is generally viewed as a supplementary source of law, used primarily for ‘filling in the gaps' and interpreting the law. Statutes and codes are the main source of law. However, the case law of the Supreme Court has strong persuasive authority on lower courts.

2 Forum

2.1 In what forum(s) is patent litigation heard in your jurisdiction? Are patent infringement and validity decided in the same forum or separate forums?

Patents cases are (almost) exclusively heard in The Hague before the specialised chambers of the District Court (at first instance) and the Court of Appeal (on appeal). This applies to both proceedings on the merits and preliminary relief proceedings. The District Court of The Hague has a specialised chamber and offers a fast-track docket regime. Once the appeal proceedings have resulted in a judgment, the parties have a right to apply for a review of the case by the Supreme Court of the Netherlands.

Infringement and validity can be dealt with by the same court (there is no bifurcation). Invalidity can be raised as a defence but also (only in proceedings on the merits) by way of a nullification counterclaim. It is possible to start separate nullity proceedings.

2.2 Who hears and decides patent disputes (eg, a judge, a panel and/or a jury)?

Cases on the merits (both regular and fast-track) are heard by a panel of three judges, whereas preliminary injunction cases are heard by a single judge. On appeal, cases are also heard by a panel of three judges. All judges of the specialised chambers are experienced in patent cases. A few also have a technical education or background. There is no trial by jury in the Netherlands.

The Supreme Court panel consist of three or five judges. Before the Supreme Court renders a judgment, the advocate general at the Supreme Court will first deliver his opinion.

2.3 Are there any opportunities for forum shopping in your jurisdiction? If so, where and how do those opportunities exist?

With only one specialised court of first instance for patent proceedings, there is no national forum shopping.

3 Parties

3.1 Who has standing to file suit for patent infringement? What requirements and restrictions apply in this regard?

In the Netherlands, two categories of rights holders may file a patent suit: the patent holder (including a co-patent holder) and its licensee. A patent holder can sue for infringement and can claim damages:

• on its own behalf; and
• on behalf of its licensee(s) and persons holding a preferential creditor right over the patent under a deed of pledge.

Unless otherwise agreed, each co-owner of a patent can sue for infringement as well. Licensees and pledgees can seek damages and/or the surrender of profits in separate proceedings if they are authorised to do so by the patent holder. Dutch case law is not clear on whether licensees and/or pledgees can bring an action aimed at obtaining an injunction independently if the patent holder has granted them this right. In view of this uncertainty, it is customary for these parties to bring infringement proceedings on the basis of a specific litigation power of attorney. They arguably need not be registered to be eligible to sue.

3.2 Can a patent infringement suit be brought against a defendant who is a foreign entity with only a residence or place of business outside the jurisdiction?

Yes. The Hague courts have international jurisdiction if:

• the defendant is domiciled in the Netherlands;
• the infringement takes place in the Netherlands;
• there is a Dutch co-defendant (certain restrictions apply); or
• provisional measures with a sufficient connection to the Dutch territory are sought.

Under certain circumstances, therefore, a case against a Dutch defendant concerning the infringement of a European patent in several jurisdictions may be brought before the District Court of The Hague.

3.3 Can a single infringement action be brought against multiple defendants? What requirements and restrictions apply in this regard?

Yes. A plaintiff can join defendants in a single action if there is a close connection between the different defendants. For example, if a retailer sells a product that infringes a patent, the patent holder or exclusive licensee can join both the retailer and the retailer's supplier for infringement. Also, the manufacturer of the product can be joined as a co-defendant.

3.4 Can a third party seek a declaration of non-infringement or invalidity in your jurisdiction? If so, how?

Yes. Anyone can seek a decision from the District Court of The Hague nullifying a patent. However, to obtain a declaratory judgment of non-infringement, a third party must show that it has a legitimate interest in obtaining such judgment. This will almost always be the case if there is a possibility (even slight) that the patent holder may initiate proceedings against it.

4 Patent infringement

4.1 What constitutes patent infringement in your jurisdiction?

A patent holder may enforce its patent vis-à-vis any (natural or legal) person that performs or provides all of the actions needed to establish infringement of a patent claim. Those acts can include making, using, offering for sale or selling the invention protected by the patent in the Netherlands.

A party (eg, a supplier of parts of the patented product) may be liable for indirect infringement if it supplies infringing third parties with means relating to an essential element of the patent for the purpose of applying the patented invention in the Netherlands, provided that it knew or should have known that those means were suitable and intended for applying the invention.

4.2 How is infringement determined?

Patent infringement is assessed by comparing all the relevant features and elements of a product or method with all the elements of a patent claim (the meaning of the claim is assessed taking into account the description and the drawings). The patent holder must therefore show that a third-party product or method falls within the scope of its patent. This is assessed by determining how the person skilled in the art, using his or her common general knowledge, would have interpreted certain claims on the priority date.

The infringement test and the equivalence test (see question 4.3) are both applied in a manner that strikes a balance between:

• fair and equitable protection for the patent holder; and
• legal certainty for third parties.

4.3 Does your jurisdiction apply the doctrine of equivalents?

Yes. Dutch law recognises the doctrine of equivalents, under which there may be infringement when the allegedly infringing product or method does not literally fall within the scope of the patent but contains equivalent elements.

The two-step test that was formulated in Dutch case law may be summarised as follows (Court of Appeal of The Hague, ECLI:NL: GHDHA:2020:2052, Lilly/Fresenius). The first step is to determine whether the allegedly infringing product or method meets all features of the claim. If this is not the case, the second step is to examine whether the different features are equivalent to the patent claims. To determine whether there is equivalence, the court will consider whether:

• the different feature is technically equivalent to the claimed feature;
• for fair protection of the patent holder, it is appropriate to take into account equivalents when determining the scope of protection of the patent;
• protection by way of equivalence is appropriate in the specific case in view of the reasonable degree of legal certainty due to third parties; and
• the accused variant is novel and inventive compared to the prior art (if this defence is raised by the alleged infringer).

4.4 Is wilful infringement recognised? If so, what is the applicable standard?

No. Wilfulness as such is not decisive in establishing damages caused by the infringement. Generally, in the Netherlands, the only form of damages is compensatory damages. The infringer is liable for compensatory damages from the time it knew, or reasonably should have known, of the infringement.

5 Bringing a claim

5.1 What measures can a patent holder take to enforce its rights in your jurisdiction? Are interim measures available before receiving a ruling on the merits?

A patent holder can start proceedings before the District Court of The Hague, including fast-track merits proceedings and preliminary relief proceedings (inter partes or ex parte). Interim measures are available before receiving a ruling on merits (see question 5.5 for further explanation of preliminary relief). Other types of enforcement include court-sanctioned seizure or arrest of allegedly infringing goods (including means of production). Similar enforcement measures are available for the collection of evidence (court-ordered dawn raids and seizures).

The patent holder can, alternatively or cumulatively, file an application with the customs authorities for seizure of goods falling within the scope of protection of its patents. A third party with an interest in the goods seized (ie, the party sending or receiving the shipment or the party arranging customs clearance or holding the goods) can then either agree to or oppose destruction of the goods. If the third party refuses, it is recommended to obtain a regular seizure order from the court, followed by further legal action.

5.2 What is the limitation period for patent infringement in your jurisdiction?

There is no specific regime for the limitation period for patent infringement. The general rules apply, which means that:

• an infringement action must be commenced within 20 years of the date of infringement; and
• the statute of limitations for recovery of damages for infringement is five years from the day after the patent holder became or should have become aware of the damage and the responsible party.

5.3 Must the alleged infringer be notified in advance before a claim is brought?

It is not compulsory to provide notice to an alleged infringer before commencing patent proceedings. However, a patent holder can only claim damages (or reasonable compensation in the case of a patent application) from a person that knowingly infringed, or had reasonable grounds to know that it was infringing, the patent. Failure to provide notice may also affect the award of litigation costs, as the costs incurred may not be considered reasonable if no notice was given (eg, if the defendant would have complied voluntarily without proceedings). Therefore, it is common practice to send a cease and desist letter before commencing patent proceedings.

5.4 What are the procedural and substantive requirements for bringing a claim for patent infringement? How much detail must be presented in the complaint?

Proceedings are frontloaded in the Netherlands. All arguments and exhibits must be put forward as soon as possible; the court may disregard an argument or exhibit if it deems the submission to be too late. The writ of summons (complaint) should contain:

• the claimant's claims and arguments;
• the evidence on which it relies; and
• any known defences.

The writ of summons is thus a fairly lengthy and comprehensive document. It is served on the defendant by a bailiff, following which the service documents should be submitted to the court by the claimant's lawyer. If the claimant wishes to be admitted to the accelerated proceedings regime, a separate request must be filed with the court prior to serving the writ of summons on the defendant. Prior to the oral hearing, the parties can also submit additional exhibits.

The claimant must substantiate its allegation that an infringement has taken place. This substantiation should be supported as much as possible with the available evidence, such as:

• product documentation;
• pictures; and
• witness or expert statements.

If the defendant does not substantively dispute this, the court must assume that an infringement has taken place. If the infringement is disputed properly, the claimant must prove the infringement, using all available means.

5.5 Are interim remedies available in patent litigation in your jurisdiction? If so, how are they obtained and what form do they take?

Yes. Under Dutch law, preliminary relief is available:

• in separate preliminary relief proceedings; or
• by separate request, for the duration of regular proceedings on the merits.

Urgency is required and must be shown for each type of relief. Preliminary relief proceedings are often used to secure an injunction in a fast and effective way. However, some restrictions apply. Ancillary measures, such as an order to provide financial and other information concerning the infringement, can also be requested (but urgency must be shown for each ancillary measure).

A patent holder can seek to obtain an ex parte injunction (ie, without hearing the defendant), but the court's policy is to reserve ex parte injunctions for extremely urgent matters that are ‘clear-cut' (since very fast preliminary inter partes proceedings are also available) – in particular, cases of irreparable harm. A patent holder may obtain such an injunction within hours or days of filing a unilateral application, supported by sufficient evidence of infringement. If the president of the district court grants the injunction, the court will set a date and time for the review of the injunction, if the defendant so desires, in inter partes preliminary proceedings. Once the court bailiff serves the injunctive order on the defendant, the ex parte injunction takes effect immediately. Other forms of ex parte preliminary relief available in the Netherlands include:

• seizure of allegedly infringing goods;
• securing of evidence (samples, computer files and documents); and
• provisional arrest/freezing of financial or tangible assets.

5.6 Under what circumstances must security for costs and/or damages incurred by the other party be provided?

A defendant may request security in respect of damages and procedural costs from a claimant seeking a preliminary injunction. However, it is unusual in Dutch patent practice for the claimant to be ordered to provide security or bonds prior to the enforcement of a preliminary injunction.

6 Disclosure and privilege

6.1 What rules on disclosure apply in your jurisdiction? Do any exceptions apply?

Pre-trial discovery does not exist under Dutch law. Dutch courts do not require disclosure of key documents, witnesses and/or the parties' contentions before trial.

6.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

Several mechanisms for obtaining evidence are available, such as:

• a seizure for preserving evidence (eg, documents or computer files);
• a written description by an expert or bailiff (eg, of a patented process or of patented product features); or
• sample taking.

Leave from the court must first be obtained. Under certain conditions, it is possible to claim access to seized evidence, transcripts or extracts of documents, which must be requested separately. The documents must be specified, so generic fishing expeditions are in principle not allowed. Another possibility is to request access to evidence held by the other party or a third party that is not involved in the proceedings. Furthermore, it is possible to request:

• (provisional) examination of a witness;
• an expert opinion; or
• a site visit.

6.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

Attorneys are bound by confidentiality; they should thus not disclose specifics of:

• handled cases;
• the client; and
• the nature and scope of its interests.

Attorney-client privilege shields from discovery legal advice given to a party by its attorney as well as communications from the party (the client) to the attorney.

7 Evidence

7.1 What procedure(s) exist for collecting and presenting evidence in patent infringement litigation?

In the Netherlands, patent holders have a duty to make a reasonable investigation into the facts underlying their claims before initiating a patent suit. Evidence can include, for example:

• documents;
• audiovisual materials;
• affidavits; and
• witness and/or expert statements.

After a complaint is filed, fact discovery in the Netherlands is not as broad and as intensive as in other countries, in particular Anglo-Saxon countries.It is possible to request:

• (provisional) examination of a witness;
• an expert opinion; or
• a site visit.

The parties are generally responsible for seeking these measures, which are rarely used in Dutch patent practice.

7.2 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

The scope of permissible evidence in the Netherlands is broad and includes documents, audiovisual materials, affidavits and witness and/or expert statements. It is common in patent cases to provide evidence in written form. The principle of freedom of evidence that applies under Dutch law implies that evidence obtained in parallel (eg, foreign, criminal) proceedings is in principle also admissible in civil proceedings.

7.3 What are the applicable standards of proof?

The litigating parties must state the basis of their claim, within which the court decides. The court will determine the facts that are not or are insufficiently disputed. If the alleged facts are sufficiently disputed, what matters is whether a sufficiently specified and relevant offer of proof has been made.

Generally, the courts are afforded broad discretion in weighing the available evidence. Parties can submit counterevidence. In preliminary relief proceedings, the court is afforded even more freedom, as the general rules on burden of proof and compulsory evidence do not formally apply. Judgment is therefore often issued on the balance of probabilities.

7.4 On whom does the burden of proof rest?

The main doctrine on the burden of proof in Dutch civil litigation stipulates that, in principle, the party invoking certain legal consequences of facts or rights posed by it has the burden of proving these facts or rights. Consequently, in principle, the patent holder has the burden of proving the factual basis on which its patent has been infringed; whereas the alleged infringer has the burden of proving the factual basis on which the patent is invalid.

Exceptions apply – for example, in proceedings enforcing a patent relating to a process for the manufacture of a new product. In that case, it is assumed that the product in question has been manufactured using the patented process unless the defendant can establish the plausibility of the contrary.

Infringement is commonly proved by providing an infringement analysis showing that the elements of the claim(s) are contained in the allegedly infringing product or process. If the alleged infringer does not substantively dispute this, the court must assume that an infringement has taken place. If the infringement is seriously disputed, the claimant must prove the infringement, to which it can rely on all available means.

8 Claim construction

8.1 Is there a procedure for construing claims during a patent infringement action? If so, when and how is it performed?

No. There is no separate procedure for construing claims in patent cases. Dutch courts assess claim construction issues in the same proceedings as infringement and validity issues.

8.2 What is the legal standard used to define disputed claim terms?

Claim construction is a matter of law. The scope of the exclusive right conferred by a patent is determined by the claims of the patent, with the description and the drawings serving to interpret those claims. In practice, the Dutch courts also refer directly to Article 69 of the European Patent Convention (and the protocol on the interpretation of this article), following the guideline that claims should be construed in such a way as to find a position in between:

• a strict, literal interpretation of the wording of the claim; and
• one that relates to what the person skilled in the art would contemplate as being patented (using his or her common general knowledge on the application or priority date).

This balanced position must combine:

• fair protection for the patent holder; and
• a reasonable degree of legal certainty for third parties.

8.3 What evidence does the court consider in defining the claim terms?

To construe a claim, the court will focus primarily on the intrinsic evidence related to the patent (ie, the claim language, the description and the drawings).

The Dutch Supreme Court has ruled that the patent holder can use the prosecution history to support a favourable interpretation of a claim only in exceptional situations, in light of the required reasonable degree of legal certainty for third parties. However, according to the Supreme Court, there is no restriction for a third party to use the prosecution history to support its defended claim interpretation. In practice, it is common for defendants to use the prosecution history for their defence.

8.4 Can the claims of a patent be amended in the course of the proceedings?

Yes. It is possible to amend the patent claims during proceedings, both at first instance and on appeal. The amendment of a European patent can be executed in two ways:

• through an auxiliary request; or
• through a central limitation at the European Patent Office (EPO).

The patent holder can file one or more auxiliary requests during proceedings. An auxiliary request concerns a set of amended claims on which the patent holder would like to withdraw if it turns out that the applicable patent cannot be upheld. The validity of the amended claim(s) must be argued by the patent holder and the defendant will be given the opportunity to defend itself. In accelerated proceedings, the submission of auxiliary requests is subject to certain limitations, including in relation to the timing.

It is also possible for patent holder to amend European patent claims at the EPO during national proceedings. This means that the patent holder limits the claims of its patent for all designated states.

9 Defences and counterclaims

9.1 What defences are typically available in patent litigation?

The primary defences raised by an alleged infringer to patent infringement claims are non-infringement and invalidity. Examples of other affirmative defences include:

• the claimant's lack of capacity or authority to initiate proceedings; and
• exhaustion (based on an authorised licence or sale by the patent holder).

Holders of standard-essential patents (SEPs) are typically bound to grant licences on fair, reasonable and non-discriminatory (FRAND) terms. If a SEP holder invokes its patent against an implementer of the standard, that implementer can defend itself against an infringement claim by arguing that the owner of the SEP:

• abused its dominant position; and
• should have given the implementer the opportunity to obtain a licence on FRAND terms.

9.2 Can the defendant counterclaim for revocation or invalidation of the patent? If so, on what grounds and what is the process for doing so?

Yes. The Dutch courts can fully or partially invalidate a patent, in which case claims that have not declared invalid remain in a limited patent. A patent can be invalidated if:

• its claims seek to protect non-patentable subject matter;
• it does not meet the requirements of novelty, inventive step (obviousness) and/or industrial application;
• it insufficiently discloses the invention;
• it contains added matter, such that the scope of protection of the patent has been extended; or
• the patent holder is not entitled to the patent.

The process for doing so is either:

• by way of a counterclaim in a case where the party seeking revocation is the defendant (typically as an alleged infringer); or
• through separate revocation proceedings, in which case the accelerated regime is available.

In the Netherlands, most patent litigation revolves around Dutch designations of European patents. In case of a national (non-European) patent, a nullity plaintiff must obtain prior approval from the Dutch Patent Office in order to have standing to request revocation of the national patent.

9.3 Are there any grounds on which an otherwise valid patent may be deemed unenforceable against a defendant?

Under exceptional circumstances, the enforcement of a patent right may qualify as an abuse of rights (eg, where there is evidence that the only purpose of exercising the patent rights is to cause damage or detriment to another person). Additionally, a patent holder cannot enforce a national patent once a European patent for the same invention:

• has been granted for the Netherlands; and
• has passed the opposition phase.

10 Settlement

10.1 Are mediation and/or other forms of settlement discussions required by the court in your jurisdiction or merely optional to the parties?

Mediation and/or other forms of settlement discussions are optional for the parties. Often the court will try to explore whether there is an opportunity to settle, but this is nothing more than an option. Settlement is not restricted by a pending case.

10.2 Can the proceedings be stayed or discontinued in view of settlement discussions?

Yes. The court proceedings can be stayed upon the parties' request; however, it is generally up to the court to decide for how long the proceedings will be stayed.

Proceedings can also be discontinued upon the parties' request. This has no legal consequences; the parties to the proceedings may agree with each other on the legal consequences. If a case is removed from the docket, this does not in itself end the proceedings. The case can also be placed back on the docket, unless the parties have agreed that the proceedings have been discontinued definitively. If, having been given the opportunity to express their views on the matter, none of the parties shows any desire to continue the proceedings, the case may also be removed from the docket by the court ex officio.

If a settlement is reached during the oral hearing, the judge will draw up and sign a written record setting out the undertakings of both parties, which will also be signed by the parties. This written record constitutes an enforcement order.

10.3 Is it necessary to report the results of settlement discussions to the court? If so, how; and what are the implications?

It is not necessary to disclose the results of settlement discussions to the court. If a settlement has been reached, the parties can request that the proceedings be discontinued.

The Code of Conduct of the Dutch Bar Association stipulates that, as regards the content of settlement negotiations conducted between attorneys, nothing can be disclosed to the court or body to whose judgment the case is submitted without the consent of the attorney of the opposing party. The ban on disclosure to the court refers only to the content of settlement negotiations. The mere fact that settlement negotiations have been held (but have not succeeded) may be communicated to the court – for example, so that the court can form an opinion on the usefulness of a court settlement conference. Moreover, the client can be present during settlement negotiations. The client is not bound by this rule of conduct, so the client can disclose the content of the settlement negotiations to the court.

Violation of the ban on disclosure is likely to have disciplinary implications for the lawyer involved. The Code of Conduct of the Dutch Bar Association contains guidelines for lawyers in the exercise of their profession. It is ultimately up to the disciplinary courts to decide whether a lawyer's conduct is (un)acceptable; the code does not bind the disciplinary judge in this respect.

11 Court proceedings for infringement and validity

11.1 Are court proceedings in your jurisdiction public or private? If public, are any options available to the parties to keep the proceedings or related information confidential?

A fundamental principle of the rule of law in the Netherlands is public access to justice. Therefore, court hearings and decisions are, in principle, public. However, under certain circumstances:

• hearings can be held (partly) ‘behind closed doors' upon urgent request; and
• decisions can be redacted.

Given this principle, the courts are generally reluctant to overly restrict public access to a hearing or a decision.

The procedural documents, such as the written briefs of the parties, are not public. Furthermore, in proceedings that involve the disclosure of trade secrets (eg, as evidence), it is forbidden to use or make public trade secrets which the court has (at the request of a party) marked as confidential. In addition, under certain circumstances, the court can limit access to documents and court hearings to particular persons (a ‘confidentiality club') if otherwise the protection of a trade secret would be harmed disproportionally.

11.2 Procedurally, what are the main steps in patent infringement proceedings in your jurisdiction? Is patent validity handled in the same proceedings as infringement or is it handled separately? If separate validity proceedings are available, what are the main steps in those proceedings?

In the Netherlands, a patent lawsuit may be initiated by filing a complaint before the District Court of The Hague, which handles both infringement and validity (generally in one procedure). Broadly speaking, the patent holder may opt for preliminary relief proceedings or proceedings on the merits (leaving aside certain specific proceedings aimed at collecting evidence or seizing assets).

Preliminary relief proceedings (inter partes) start with the claimant submitting a draft writ of summons requesting the preliminary relief judge of the court to set a date for a hearing. Thereafter, the bailiff serves the writ of summons on the defendant, which must contain:

• the claimant's claims and arguments; and
• a description of the evidence on which it relies.

Either at the same time or shortly thereafter, the claimant submits its evidence (exhibits). The defendant must submit its evidence before the subsequent oral hearing (submission of a written defence is not common but allowed), where both parties present their case. As is discussed in more in detail in question 5.5, under certain circumstances preliminary measures may also be obtained through ex parte proceedings.

A party initiating proceedings on the merits can choose between:

• accelerated patent proceedings (more popular); or
• regular proceedings.

A party seeking to start accelerated patent proceedings must first obtain leave of the court. The choice must be made before initiating the proceedings. At the start of the accelerated proceedings on the merits, the court determines:

• a fixed time schedule for the exchange of briefs; and
• the time and date of the hearing.

Regular proceedings are sometimes used by an alleged infringer seeking to invalidate a patent if it has an interest in delaying the proceedings. In accelerated proceedings on the merits, after the proceedings are initiated with a writ of summons and exhibits, the defendant can submit a statement of defence (possibly including a counterclaim), together with its exhibits. Thereafter, an oral hearing takes place (which is preceded by a statement of reply to the counterclaim, if any), and additional exhibits can be submitted. In regular proceedings on the merits, there may be an extra round of exchanging written briefs. This possibility may be an advantage in complicated disputes in which more detailed arguments may be required, including standard-essential patent disputes that involve fair, reasonable and non-discriminatory defences.

11.3 What is the typical timeframe for patent infringement proceedings? If separate patent validity proceedings are available, with is the typical timeframe for those proceedings?

Preliminary relief proceedings are often heard within two to 10 weeks of service of a writ of summons on the defendant; while a decision is normally handed down within two to four weeks of the hearing.

Accelerated proceedings on the merits typically last between about 12 and 15 months (although this can be longer or shorter). Litigation is conducted in accordance with a pre-defined schedule, which is determined by the court before initiating the proceedings.In non-accelerated proceedings on the merits, it is not possible to agree on a binding timetable for the proceedings. Regular first-instance proceedings on the merits generally last at least 18 months. The time it takes to complete these proceedings may vary considerably depending on the parties' procedural conduct, such as whether interim motions are filed. It is possible to expedite regular proceedings on the merits if the litigants allow only limited extensions between the exchange of briefs.

In preliminary relief proceedings and accelerated proceedings on the merits, the possibility for defendants to delay the proceedings is very limited. A defendant can claim that the matter is too complicated, although this rarely results in a delay. In accelerated proceedings on the merits, the parties must adhere to a schedule set by the court, which leaves little to no room for delaying tactics.

11.4 To what extent do the decisions of national or foreign courts or bodies influence the court's decision?

The court has no legal obligation to consider foreign decisions, even if the matter concerns:

• the same parties;
• more or less the same facts; and
• a patent from the same family.

However, decisions of courts in other jurisdictions are considered by the Dutch courts – in particular, if handed down by an authoritative foreign body, including the UK and German courts.

12 Remedies

12.1 What remedies for infringement are available to a patent holder in your jurisdiction?

A patent holder has a wide range of remedies available, the most common being:

• an injunction;
• the surrender or destruction of infringing goods;
• accounting for and surrender of profits;
• an order to publish a public statement regarding the outcome of the proceedings (eg, on the website or by letter);
• a recall order;
• an order to provide information concerning suppliers, customers and/or (re)sellers; and
• an award of damages and/or litigation costs and/or surrender of profits.

The orders may be subject to penalties. A declaration on infringement and/or validity is another type of relief that is available.

12.2 Are punitive or enhanced damages available in your jurisdiction? If so, how are they determined?

No. Punitive damages are not available under Dutch law.

12.3 What factors will the courts consider when deciding on the quantum of damages?

A patent holder may seek compensatory damages in the form of monetary remedies if the infringer knowingly, or with reasonable grounds to know, engaged in the infringing activity. Such remedies include:

• payment of lost profits;
• alternatively, the surrender of the profits made from the infringing activities; and
• other damages (eg, loss of value of the patent).

13 Appeals

13.1 Can the decision of a first instance court or body be appealed? If so, on what grounds and what is the process for doing so? Please also describe the availability and process for additional levels of appeal.

Decisions rendered in regular or accelerated proceedings on the merits as well as in preliminary relief proceedings can be appealed. The appeal must be brought before the Court of Appeal of The Hague. No leave is required. The case can be reviewed in full or, at the request of the appellant, can be limited (notwithstanding the counterparty's right to cross-appeal). Appeal is initiated by serving a writ of summons in appeal on the opposing party. The writ may contain the grounds of appeal, but it can also merely be a formal notification that an appeal has been instituted. The respondent can cross-appeal. The Court of Appeal of The Hague will conduct a de novo review of the case and the parties can bring forward new arguments and exhibits.

The third possible instance is the Supreme Court, also located in The Hague, which hears appeals in cassation. The Supreme Court will consider:

• whether the Court of Appeal properly applied the law; and
• whether, based on the facts that may be taken into consideration, the Court of Appeal's judgment is comprehensible and adequately substantiated.

Appeal in cassation is initiated by serving a writ of summons in cassation on the opposing party. Before the Supreme Court renders a judgment, the advocate general at the Supreme Court will first deliver his opinion, to which the parties can respond.

13.2 What is the average time for each level of appeal in your jurisdiction?

The timeframes for appeal proceedings are comparable to those for first-instance proceedings (see question 11.3). Appeal proceedings in preliminary proceedings usually last between three and 12 months. In proceedings on the merits, an appeal before the Court of Appeal of The Hague typically takes between 12 and 18 months.

14 Costs, fees and funding

14.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

The costs of patent litigation in the Netherlands – as in all jurisdictions – may vary significantly depending on:

• the complexity of the case;
• the strategy of the litigants;
• the type of proceedings (regular proceedings on the merits, accelerated proceedings on the merits or preliminary relief proceedings);
• the pace of the litigation; and
• procedural complications (eg, witness or expert hearings).

On average, the costs of first-instance litigation range from €100,000 to €350,000. On appeal, the costs are slightly less.

The courts in The Hague have implemented a scheme that imposes the following caps on awards of litigation costs in patent matters:

• Preliminary relief proceedings: Between €10,000 and €120,000.
• First-instance proceedings on the merits: Between €30,000 and €250,000.
• Appeal proceedings: Between €30,000 and €250,000.

These fee caps only cover the costs of attorneys and patent attorneys; the costs of party experts, disbursements (eg, courier or translation costs), court fees and value added tax are not included. These latter costs may be recovered in full. The parties may agree on the amount of costs before the oral hearing.

14.2 Are contingency fee and/or other alternative fee arrangements permitted in your jurisdiction?

In principle, pure contingency fee arrangements (no win, no fee) are prohibited. However, it is possible to agree on alternative fee arrangements, such as:

• fixed or capped fees; or
• a success/bonus fee (ie, a percentage of the regular billing which is contingent upon success in the matter or quality of service).

14.3 Is third-party litigation funding permitted in your jurisdiction?

Third-party litigation funding is permitted in the Netherlands. There are no specific restrictions on third-party litigation funding under Dutch law. The general rules of contract law apply and the parties are free to draft the funding agreement as they wish in light of the principle of freedom of contract (as long as it does not contravene rules of public policy, good morals, reasonableness and fairness and so on).

15 Trends and predictions

15.1 How would you describe the current patent litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The life sciences industries (pharma, biotech and medical devices) provide a steady source of patent litigation in the Netherlands, which we expect will continue to be the case. In recent years, the number of cases concerning (standard-essential) telecommunications inventions has increased.

The Unified Patent Court commenced operations on 1 June 2023 with a local division in The Hague. This is expected to transform the European patent landscape.

As regards national legislative reforms, the Patent Act is set to be modernised. The proposed changes include the replacement of the current registration patent (which is not tested for validity by the Dutch Patent Office (DPO) prior to grant) with a patent which is tested for validity. A regime to initiate opposition proceedings against Dutch patents before the DPO has also been proposed. The proposed legislation is still being drafted by the Ministry of Economic Affairs and Climate Policy and it is not yet known when it will be published.

16 Tips and traps

16.1 What would be your recommendations to parties facing patent litigation in your jurisdiction and what potential pitfalls would you highlight?

The most important strategic reasons for international litigants to try their case in the Netherlands are the quality and efficiency of the specialised court. It is possible to obtain an injunction, in some cases with cross-border effect, within six to 12 weeks at relatively low cost.

Another strategic reason for considering the Netherlands as a forum for patent litigation is its key location in Europe: the ports of Rotterdam and Amsterdam are two of the largest in Europe and are important points of entry for pan-European imports. Additionally, because of the tax climate, a substantial number of multinationals have their headquarters, logistics centres or other notable presences in the Netherlands. The Dutch system offers fast and low-threshold provisional measures such as:

• injunctions;
• seizure of assets; and
• evidence collection procedures.

Once an injunction has been obtained, it is almost always immediately enforceable and all penalties are payable to the patent holder. Substantial litigation costs may be recovered from the losing party if the proceedings concern or are related to infringement.

An alleged infringer may leverage the quality and efficiency of the court system to knock out invalid patents or seek declaratory relief of non-infringement. Although The Hague courts may consider foreign decision, they are not too shy to form their own opinions. A party that suspects ex parte measures may be imposed can mitigate this risk by filing a protective letter with the District Court of The Hague.

One pitfall for patent holders litigating in the Netherlands concerns damages, as – unlike in the United States and elsewhere – it is not possible to obtain treble or other punitive damages.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.