Abbott Laboratories vs. Teva Pharmaceuticals Europe et al.: Principle claims

Primary relief proceding at the Distric Court The Hague 25th july 2007. Case number KG ZA 07-623, Abbott Laboratories vs. Teva Pharmaceuticals Europe et al.

An important judgement on question of what should be regaurded as the principle claims when applying articles 1019 f. and 700 subsection 3 Rv. (Dutch Code on Civil proceedings).

Abbott GmbH & Co KG (not a party in this case) holds the European patent and an additional protection certificate for the medical indication of a specific form of the substance sibutramine for the treatment of obesity. Because of a (claimed) danger of infringement by Teva, Abbott has, as per arts. 1019b, 1019c, 1019d in conjuntion with arts. 700 and 709 Rv (Dutch Code on Civil procedure), levied prejudgement attachments upon Teva. Amongst the documents seized by Abott were several digitally kept documents and files stored on Teva’s servers.

Abbott claims in the principle action access and copies of the documents held by the bailiffs as per arts. 1019a in conjunction with 843as Rv. In a counter claim Teva claims immediate removal of the attachments as well as several secondary claims.

The primary relief court repeals the attachments levied by Abbott.

The relief court judges the attachments to be illegitimate. Primarily because in their statement of claim for the attachments Abbott neglected to state that they were acting on behalf of the patent holder Abbott GmbH & Co KG.

The other grounds for the attachments have no merit either. The relief court considers that the threshold for admissibility of the prejudgement attachments as per arts. 1019 f. Rv needs to be interpreted loosely in interlocutory proceedings. This threshold in this case, has not been reached. Abbot has provided in sufficient proof of infringement by Teva.

As a third reason for a withdrawal of the attachments the relief court mentions Abbott has not commenced the principle proceedings in time. Abbotts causes of action in principle cannot by viewed as a primary case in the sense of arts. 1019 f. in conjunction with 700 subsection 3 Rv. Firstly, the relief considers that these proceedings:

“must be interpreted such that infringement proceedings are “meant to be principal proceedings”, not just proceedings pursuant to Section 1019a in conjunction with 843a of the Dutch Civil Code, as they were initiated in these preliminary relief proceedings (5.6)”

Secondly, as per arts. 50 subsection 6 TRIPs, this injunction case should have been an action on the merits, not in interlocutory procedure. The primary relief court consider to this effect:

“5.7. The preliminary judge leaves aside the fact that Section 1019i of the Dutch Code of Civil Procedure requires that principal proceedings as referred to in Article 50(6) of the TRIPs Agreement are initiated within a reasonable period of time. Although for normal prejudgment seizure, preliminary relief proceedings may constitute a claim in the principal proceedings, this cannot hold true for the present seizures (for evidentiary purposes). After all, according to case law of the EC Court of Justice (16 June 1998,C-53/96, HermeÌs) Dutch preliminary relief proceedings themselves must be considered as preliminary relief measures in the sense of 50 TRIPs, which is incompatible with the idea that the same preliminary relief proceedings as part of the seizurelevied were to be considered as principal proceedings in the sense of that same Article. Since Abbott failed to initiate proceedings on the merits within the period stipulated by the preliminary relief judge (to the extent that this should be regarded as a period inthe sense of 50(6) TRIPs) or within the period of 31 calendar days or 20 work days as indicated in 50(6) TRIPs, and since Teva et al. have requested that the seizures be lifted, the curtain comes down on the seizures levied."

Abbott’s claims are denied. Teva’s counter claims are allowed. Abbott is ordered to pay Teva’s cost in these proceedings amounting to 91.993,00 Euros; this includes an amount for solicitor’s costs, which Abbott had not challenged. Also the counter claimed conditional judicially imposed fine of 75.000 Euros a day on Abbott in awarded.

Read the entire judgement here.