Posted: December 8th, 2009
Van Beelen Industrie en Handel B.V. v. Otter Ultra Low Drag Limited, Court of Appeal The Hague, 8 December 2009, Docket No. 258144/HA ZA 06-277, with thanks to Muriel van den Hazenkamp, Aries Advocaten
The Dutch Court of Appeal refuses to guarantee full costs in patent proceedings filed prior to expiry of the Enforcement Directive (Directive 2004/48) implementation deadline. The Court of Appeal refuses to interpret the national law in conformity with the Enforcement Directive since such an interpretation would impede the legal certainty.
In principle, a party to Dutch legal proceedings is entitled to a guarantee for legal costs in case of a non-Dutch counter party. Van Beelen appealed the decision of the Court of first instance since the Court had only awarded a guarantee for the court-approved standard scale of costs in the proceedings. The Court of first instance had rendered its decision after the expiry of the implementation deadline of the Directive, but before the Dutch Government had taken definitive measures to implement the Directive. The case in first instance was filed prior to the expiry of the implementation deadline.
The Court of Appeal went on to consider that after expiry of the implementation deadline, the national laws may be interpreted in conformity with the he Enforcement Directive since the norms contained in it are (albeit open) unconditional and sufficiently precise and since interpretation in conformity with the Directive (after the implementation deadline) meanwhile became common. Therefore, such interpretation no longer leads to legal uncertainty. This reasoning led to a full cost order in the appeal proceedings (which were filed after expiry of the implementation deadline).
Read the judgment (in Dutch) here.