Bettacare vs. H3: Gat/LuK, cross-border escape
District Court The Hague, 21 September 2006, KG ZA 06-694. Bettacare Limited versus H3 Products B.V. and Wedeka B.V.
Patent law.The Dutch cross border-practice had been comatose for a while, but has now reawoken, albeit possibly strongly downsized. It is in any case not dead (after GAT/LuK and Primus/Roche). In summary proceedings between Bettacare and Wedeka the court awarded a cross border ban on infringements for the Netherlands and Germany.
British Bettacare is the owner of a European patent concerning a child safety wicket. The Dutch company H3 Products B.V. markets child safety barriers produced by Wedeka B.V. of Stadskanaal (the Netherlands) that constitute according to Bettacare an infringement of the patent. In summary proceedings Bettacare claims a ban on infringement for all countries to which the patent was awarded. H3 Products and Wedeka dispute the validity of the patent by claming public prior use.IEFglish
The court considers the offered proof of prior use insufficient. Therefore, chances are that the patent will be nullified in proceedings on the merits. Patent breach in the Netherlands and Germany however is plausible according to the Judge. The Presiding Judge waives the statement made by H3 Products and Wedeka that GAT/LuK shows that in putting forth a validity defence under German law, the Dutch summary court would lose its jurisdiction. GAT/LuK according to the court does not show that the competent Dutch court (according to 2 EEX Regulation) would lose its jurisdiction because of the exclusive jurisdiction basis of article 22 sub 4 EEX Regulation. In summary proceedings no final judgement can be made of the validity of the patent; there can only be a provisional judgement by way of an estimate of the possible outcome of the validity defence. In case of jurisdiction based on article 2 EEX cross-border bans are therefore still possible in summary proceedings, even if a substantiated validity defence is put forth.
Apart from the jurisdiction vicissitudes this order is interesting because of the consideration made by the Judge concerning the alleged public prior use. See consideration 4.3 of the judgement.
Read the entire judgment here.
IEFenglish
