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[X] (natural person, anonymized) and Jet Set Hydrotechniek B.V. v. Hoffland B.V. and [Y] (natural person, anonymized), also doing business under the name Brielle Industrie Services, District Court of The Hague, the Netherlands, 3 June 2015, Case number 444144 / HA ZA 13-638

[X] holds a patent for a system and method for cutting steel plates (EP '630). Jet Set trades in cutting devices developed by [X] under the name RAGWORM. Hoffland offers demolition services, inter alia with respect to oil storage tanks, while Brielle Industrie Services as a one-man-business offers cleaning services for tanks, as well as cutting services for tanks by means of water under high pressure.

In April 2013, the parties concluded a settlement agreement, in which it is inter alia set out that Brielle Industrie Services acknowledges infringement of EP '630 and undertakes to refrain from (further) infringement of EP '630, unless if it were ruled by a court that EP '630 is invalid in a judgment that has become final (no longer open to appeal).


In September 2013, the summary judge of the District Court of The Hague, in separate summary proceedings initiated by [X] and Jet Set vis-à-vis five other parties concerning the alleged infringement of EP '630, ruled that there was a serious, non-negligible chance that claims 1, 2, 3 and 8 of EP '630 would be revoked in proceedings on the merits, as confirmed by the Court of Appeals of The Hague in March 2015.

The present infringement proceedings vis-à-vis Hoffland and Brielle Industrie Services were lodged by [X] and Jet Set in September 2013, following a seizure of evidence conducted on their request. Hoffland and Brielle Industrie Services in these proceedings in turn lodged a counterclaim for revocation of EP '630, relying primarily on added matter.

The parties in the proceedings are in debate whether a sub-feature of claim 1 of EP '630, namely "means for driving the cutting device relative to said steel plate", was disclosed in the original application. While [X] and Jet Set claim this sub-feature is to be interpreted as meaning 'free from guide-means attached to the steel plate', Hoffland and Brielle Industrie Services take the position that it should be interpreted as meaning that 'the steel plate has no physical influence on the movement of the cutting device'.

The District Court leaves these arguments undiscussed, as both interpretations build on the assumption that the sub-feature relates to the cutting device in relation to the steel plate. However, according to the District Court's interpretation, the original application does not disclose such independence of the cutting device in a direct and unambiguous manner. With reference to the earlier decision of the Court of Appeals of The Hague and despite several requests for limitation submitted by [X], the District Court rules that all claims of EP '630 are revoked due to added matter.

Hoffland and Brielle Industrie Services in these proceedings also claimed that the settlement arrangements between parties should no longer remain in effect, as the arrangements would constitute a breach of Article 6 of the Dutch Competition Act (in which anti-competitive agreements are prohibited) and because it would not be possible to infringe a revoked patent. With reference to Regulation 316/2014/EC and Communication 2014/C 89/03 of the European Commission, the District Court rejects the first argument, as settlement arrangements in the context of technology-related disputes are exempted from the prohibition relied on by [X] and Jet Set.

The second argument is also rejected, because Hoffland and Brielle Industrie Services knowingly decided to lay down their legal position vis-à-vis [X] and Jet Set in a settlement agreement and the present judgment would still be open to appeal for a certain amount of time. On the other hand, [X] and Jet Set's claim that Hoffland and Brielle Industrie Services acted in breach of the settlement agreement by using a cutting device that falls within the scope of the claims of EP '630 is also rejected, as the cutting device used by Hoffland and Brielle Industrie Services makes use of two electro-motors, instead of a hydraulic or pneumatic motor as set out in EP '630.

Finally, the District Court of The Hague awards Hoffland and Brielle Industrie Services' claim for damages as a result of the (unjustified) seizure of evidence, but rejects the claim for damages as a result of the (unjustified) enforcement of EP '630 (with reference to the settlement agreement).

Read the judgment (in Dutch) here.

Head note: Tim Iserief, NautaDutilh