Dr. F.J. Primus and Dr. M.D. Goldenberg v. Roche Nederland B.V. and Roche Diagnostic Corporation, Court of Appeal The Hague, 21 August 2012, case no. 200.005.959/01, with thanks to Willem Hoyng, Hoyng Monegier, for sending in the decision
A new episode in the Roche v. Primus saga. The case first went up to the Supreme Court, who referred question regarding the jurisdiction to the ECJ (the well know case with no. C-539/03). After the referral the Supreme Court ruled that the Dutch courts do not have jurisdiction to hear the claims against the other European entities, but only with regard to the Dutch and US entity. The case was referred back to the court of appeal to rule again on a part of the infringement question, which was not adequately motivated in the earlier judgment of the Court of Appeal.
This judgment therefore largely concerns the experiments submitted by Primus in order to establish whether the antibody of Roche meets one of the elements of the claims. Ultimately the court rules that Roche's antibody infringes the patent of Primus et al. The (amended) infringement claim against the Dutch entity is allowed.
The court finds that it is also competent to rule on the infringement of the German part of the patent, since the German case on the validity has been decided and is not being appealed. It thus follows the Supreme Court's interpretation of th GAT/LuK case, in that the court competent to hear infringement would remain competent and may continue the infringement suit when the foreign validity challenge has been decided. However, with regard to the US entity the court rules that is has been insufficiently established that the US entity sold or delivered infringing products in the Netherlands and or Germany.
Read the decision (in Dutch) here.
Head note: Paul van Dongen
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