Canusa v. Frans Nooren and Stopaq, President of the District Court The Hague 2 March 2011, case / docket number: 382458 / KG ZA 10-1556
One of the defendant Frans Nooren is the holder of two European patents for inter alia i) the use of a fluid, non-setting preparation for protecting underground objects against corrosion, ii) a method for sealing manholes covers, and iii) a composition for the protection of a shaped article against corrosion. The other defendant Stopaq is for The Netherland the exclusive license under these patents. Between the claimant Canusa and the defendants infringement proceedings are pending in Germany with respect to the German parts of the patents. Canusa intends to enter the Dutch market with two new products of which they believe that they are not infringing. Canusa demands from the defendants that they render an opinion as to whether or not the new products of Canusa would be held to infringe upon their patents. After an extensive correspondence between the lawyers of both parties, defendant maintained its position that on the basis of the limited information provided a proper assessment of non-infringement cannot be made.
In summary proceedings Canusa demands that defendants tolerate the manufacturing and exploitation of the two new Canusa products, and furthermore files for an injunction for defendants to enforce the patents with respect to these products. These claims are dismissed by the court. According to the court Canusa’s first claim comes down to a request for a negative declaratory judgment and is in fact a anti-suit injunction. Such a judgment cannot be rendered in summary proceedings. Morover, defendants have not in any way enforced, warned or informed Canusa or its customers in The Netherland with respect to their new products. The mere fact that defendants were not willing to provide Canusa with their assessment of non-infringement, to which they were not obliged by law, is under the circumstances of this specific matter not unlawful against Canusa.
Read the judgment (in Dutch) here.
Head note: Wim Maas