EPLAW PATENT BLOG

NL – Anheuser-Busch Inbev v. Heineken / threshold for access to evidence

Posted: February 1st, 2019

Anheuser-Busch Inbev N.V. v. Heineken Supply Chain B.V. et al., Interlocutory Judge of the District Court of The Hague, The Netherlands, 1 February 2019, Case No. ECLI:NL:RBDHA:2019:853

Anheuser holds EP 2 152 486 B1 (hereafter: EP 486) for an “integrally blow-moulded bag-in-container comprising an inner layer and an outer layer comprising energy absorbing additives, preform for making it, process for producing it and use”.

In May 2018, Anheuser seized evidence, took samples and had detailed descriptions made at Heineken’s premises of Heineken’s Brewlock system which it markets since 2014. Anheuser in these interlocutory proceedings requests access to the seized evidence by means of surrender in order to assess its position in infringement proceedings.

The Judge states that usually a relatively low threshold for access is applied in interlocutory proceedings where it concerns technical infringement evidence. However, according to the Judge, this low threshold for access does not apply in interlocutory proceedings if access is requested to real trade secrets when there is a serious, not to be neglected chance that the patent will be invalidated in proceedings on the merits. With respect to validity the Judge refers to the Opinion of Advocate General Van Peursem in Synthon v. Astellas (and his conclusion in paragraph 4.16).

This low threshold according to the Judge also does not apply if it is likely that the claim/scope of protection interpretation of the patent holder will not hold in proceedings on the merits (even if the evidence it seeks were to be delivered).

The Judge states that in these circumstances, access should be denied in interlocutory proceedings. A patent holder should first have that patent or that interpretation assessed in proceedings on the merits, after which it is up to the Court to -if necessary- allow access. This will be different if the alleged infringer fails to show real or significantly important trade secrets.

In the current case access is requested by Anheuser to real trade secrets and there is a serious, not to be neglected chance that the patent will be invalidated in proceedings on the merits. Also, there is a non negligible chance that the Court in proceedings on the merits will rule that the additives in Heineken’s Brewlock referred to by Anheuser are not additives falling under claim 1 of EP 486.

Furthermore, the Judge takes into consideration that Anheuser could have acted more swiftly. If a patent holder fails to act against infringement for a prolonged period of time, there is more reason to refer the question of access to evidence to proceedings on the merits, in which the Court can decide whether the patent is valid, whether the interpretation of the scope of protection of the patent holder holds and subsequently if access is needed. The Judge in his reasoning refers to paragraphs 4.9 and 4.11 of the Opinion of Advocate General Van Peursem in Synthon v. Astellas.

A copy of the judgment (in Dutch) can be read here.
The judgment is redacted pursuant to Art. 29(4) DCCP (protection of trade secrets)

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