Ajinomoto Co. Inc. et al v. Global Biochem (Global), District Court The Hague, The Netherlands, 27 August 2014, Case no. HA ZA 06-2131

Ajinomoto and Global Biochem (Global) are involved in litigation relating to biotechnologically produced lysin. (Interlocutory) decisions on the merits regarding validity and infringement have already been rendered by the District court of the Hague and several other courts (including the Dutch Supreme Court). The present decision relates mainly to the cost order.

The District Court finds that allthough proceedings had been brought before implementation of the Enforcement Directive (but after the final implementation date) in anticipation thereof the Directive does apply. Consequently, Global are ordered to compensate Ajinomoto’s costs related to the enforcement of its patents.

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Related party Helm argued that no cost order should be issued against them, since they were bona fide and the infringement would have been solicited by Ajinomoto. The Court did not follow this and held that Helm refused to give an unambiguous and unconditional cease and desist declaration and supplied lysin voluntarily.

Global further raised a defense based on the ECJ Bericap-decision against the cost order for the counterclaims for invalidity (see, EJC 15 November 2012, C-180/11). This defense, however, was rejected. The court follows the court of appeal that held previously that a cost order for a validity claim is appropriate as long as there is a real connection to the enforcement of intellectual property rights. In contrast, Bericap related to a "pure" nullity action.

Read the judgment (in Dutch) here.

Head note: András Kupecz, Simmons & Simmons