Synthon vs. Astallas Pharma: Cross border evidentiary- and descriptive attachment
Arnhem District Court, 1st june 2007, KG ZA 07-304. Synthon B.V. vs. Astallas Pharma Inc.
Cross border evidentiary- and descriptive attachment (artt. 1019b-d Rv.) in a pharmaceutical patent case. Astallas Pharma inc had an evidentiary- and descriptive attachment made in order to secure proof in a case about a German medical patent. Immediately after the attachment Astellas’s bailiff, solicitor and patent agent gained access to the attached patent and information contained in it. They made a report of this information. This report was subsequently used in the German case.
The Arnhem District court first answered the question whether or not the evidentiary and descriptive attachment rules laid out in articles 1019 f. Rv (Dutch Code on Civil Procedure) were applicable in obtaining and retaining evidence in cases concerning foreign IP rights infringements. Synthon pointed to the text of article 1019 f Rv, to the explanatory memorandum to the act and to the second article of the Enforcement Directive, all of which seem to point out territorial limitations of these provisions. The District Court Judge, however, ruled the rules do apply. Referring to paragraphs 7 and 8 of the memorandum to the Enforcement directive and to article 31 of the EEX-treaty and article 24 of the EEX-directive.
“4.5 With all this, it is irreconcilable that in the case of cross-border infringements as the current matter for enforcement in a member state no use could be made of the (enforcement) possibilities provided in the national laws of another member state for the implementation of the Enforcement Directive.”
The court considers that the prejudgement attachment is executed with the end to conserve an existing situation and not to give the person levying the attachment a possibility to learn what is in the patent or keep this as evidence. The court considers that it is for a different procedure on merits to rule on what should happen to the evidence subsequently. A decision to allow an attachment does not automatically contain the right of inspection (4.13).
The court also states, in consideration 4.14, that in case of a descriptive attachment, the description has to be made by a bailiff and not by the person levying the attachment (or their solicitor or patent agent). Such a description has to be limited to a description of what has been examined so that it is identifiable at a later stage. Thus the distribution may not contain detailed information. (Consideration 4.15).
Read the entire judgement here.
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