LSHC Horizons Brochure 2024 - Flipbook - Page 52
Hogan Lovells | 2024 Life Sciences and Health Care Horizons | Litigation
52
Netherlands: Patentee not liable against health insurer for patent
enforcement against generic company
The Dutch Supreme Court upheld a decision
of the appellate court in which an innovative
life sciences company was held not to be liable
towards a health insurer for the enforcement
of a preliminary injunction against a generic
company, while the patent was later
found invalid.
The appellate court considered that there is no
strict liability vis-à-vis third parties, such as a
health insurer. The appellate court found that
the life sciences company did not know nor
should have known in the circumstances of the
case that there was a serious chance that the
patent would be revoked in opposition or court
proceedings. The appellate court also rejected
a claim based on unjustified enrichment, as it
considered that the enrichment did not have an
unjustified nature.
The Supreme Court considered that the mere
ruling that the patentee did not act unlawfully
does not mean per se that the enrichment was
justified. The Supreme Court however held that
the appellate court did not reject the unjustified
enrichment claim solely on this ground but on
the basis of various circumstances.
Gertjan Kuipers
Partner
Amsterdam
The Supreme Court also considered that the
appellate court did not set too high a threshold
for culpability in the context of unlawful
act. The Supreme Court considered that the
appellate court took various circumstances into
account when concluding that the life sciences
company did not know nor should have
known that there was a serious chance that
the enforced patent would be revoked:
• the Dutch first instance court had previously
held the patent to be valid;
• the patentee’s position with respect to
inventive step was not clearly incorrect;
• a patentee may in principle rely on a decision
on the merits of a Dutch court confirming the
validity of a patent. A revocation decision of
a foreign court does not per se mean that the
patentee knew or should have known that
there was a serious chance that the Dutch
part of the patent would be revoked.
The decision of the Supreme Court shows that
liability of a patentee towards a third party,
such as a health insurer, for enforcement of
a preliminary injunction decision against
another party, such as a generic company,
is not easily accepted.
Ruud van der Velden
Partner
Amsterdam
Dirk-Jan Ridderinkhof
Counsel
Amsterdam
