Posted: March 19th, 2014
Ajinomoto v. Global Bio-Chem Technology et al. (GBT), District Court The Hague, The Netherlands, 17 February 2014, Case No. C/09.452707 / KG ZA 13-1178
Ajinomoto is the proprietor of EP 0 733 710 relating to a “process for producing L-lysine by fermentation”. Both Ajinomoto and defendants GBT et al. produce and sell L-lysine. By judgment of 22 August 2007, the District Court in The Hague ruled that GBT infringes EP ‘710 and imposed a penalty sum of € 10,000 for each infringement or € 20,000,- for each day the infringement continues. This judgment has been confirmed by the Court of Appeal in The Hague on 29 March 2011. The Supreme Court of the Netherlands dismissed GBT’s appeal on 13 September 2013.
In this enforcement dispute both parties agree that GBT has (accidently, according to GBT) sent shipments of lysine, which fall within the scope of protection of EP ‘710, to the Netherlands, after the notice of judgment had been served. Ajinomoto claims that the penalty should be increased to € 10,000,- for every kilogram of infringing lysine. Ajinomoto further claims that GBT be prohibited from manufacturing, marketing, selling etc. any type of L-lysine in the Netherlands, unless, prior to these actions, GBT provides the lawyers of Ajinomoto with a independent test report which shows that the L-lysine has not been manufactured according to a method that falls within the scope of protection of EP ‘710. Furthermore, Ajinomoto claims that GBT submits a statement containing the details of the infringement (e.g. prices, volume, profit), as well as a recall of the product and an order for rectification.
The Judge agrees with Ajinomoto that the penalty sum should be increased to 1,000 per kilogram of infringing lysine, because apparently the initial penalty sum per infringing shipment did not provide enough incentive to desist from the infringement. The Judge refuses, however, to oblige GBT, in relation to future shipments of L-lysine, to provide test reports to Ajinomoto in advance. He ruled that GBT cannot be obliged, based on infringement committed in the past, to limit any damage that would be incurred in connection with possible future infringements. In addition, he considers that Ajinomoto has not established that GBT will continue the infringement in the future. Furthermore, the Judge grants Ajinomoto’s claim for a statement of sales, customers and profits, a recall of the infringing lysine and the publication of a rectification.
Read the judgment (in Dutch) here.
Head note: Jaap Bremer