Danisco A/S v. Novozymes A/S, Court of Appeal The Hague, 26 February 2013, Case no. 200.094.921/01
In these proceedings, Danisco sought to nullify Novozymes' patent, while Novozymes counterclaimed for infringement. This judgment only concerns the litigation costs, as the patent was invalidated by the EPO Board of Appeal pending the Dutch proceedings.
With regard to the litigation costs, Novozymes argued that in view of the Bericap decision of the CJEU (C-180/11 of 15 November 2012), Danisco could not claim reimbursement of the full litigation costs. According to Novozymes, it would follow from this decision that no reimbursement of full litigation costs is not possible in invalidation proceedings.
The Court of Appeal did not accept this argument. The court reasoned that the Bericap decision of the CJEU was limited to the specific circumstances of that case, in which there was no (apparent) threat of infringement. Since Danisco initiated the present proceedings with the aim to defend itself against an impending infringement claim, the litigation costs could be awarded. However, the court did lower the claimed award, as it found that some costs (for instance costs made by Danisco in anticipation of a potential negative outcome of the opposition proceedings) should not be taken into account.
Read the decision (in Dutch) here.
Head note: Paul van Dongen