NL – Astellas Pharma v. Synthon

Posted: February 7th, 2013

Astellas Pharma Inc. v. Synthon B.V., District Court Eastern Netherlands/The Hague, The Netherlands, 1 February 2013, Case No.234794 / KG ZA 12-533, C/09/429848 / KG ZA 12-1189, with thanks to Willem Hoyng, Frank Eijsvogels and Robin van Kleeff, Hoyng Monegier, for sending in the judgment and a translation in English

Astellas holds a patent for a sustained release preparation, and claimed that Synthon’s sustained release tamsulosin products infringe  upon that patent. The PIL listed inter alia the Dutch entity Synthon B.V. (“Synthon”) as manufacturer of the products. Following leave by the Court, Astellas provisionally seized documents  at the premises of Synthon, for evidence that Synthon had indeed committed infringing or unlawful acts.

Subsequently, the provisional relief judge was requested to order Synthon to grant access to the documents.  This claim succeeded. The judge reiterated that access to documents which are seized as evidence can only be granted if claimant is able to show to a reasonable degree that there is an infringement, and is able to sufficiently rebut the arguments made by the other side that there is not. The confidentiality of the seized documents also plays a role: the higher the confidentiality, the more likely the infringement should be to gain access (and vice-versa).


The parties were in disagreement whether the Synthon products fell within the scope of the claims. They submitted measurement reports which were irreconcilable, and the experts they put forward had totally opposite views. On this basis, the provisional release judge held that there were serious doubts whether the Synthon products did indeed infringe. He did, however, grant the relief, as the threshold for granting access to seized documents with respect to the likelihood of infringement was deemed lower than for granting a (preliminary) injunction, and as Synthon had allegedly not substantiated why the seized documents would be confidential in nature. The requested relief would therefore not be damaging for Synthon, which also meant that the threshold with respect to the likelihood of infringement could be low. The provisional relief judge also accepted a legitimate interest on the part of Astellas to gain access to the documents, as they possibly could help establish that Synthon had indeed committed infringing and/or unlawful acts.

Read the judgment (in Dutch) here.

Read the judgment (in English) here.

Head note: Geert Theuws

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