Menzis Zorgverzekeraar N.V. and Anderzorg N.V v. AstraZeneca B.V. and Astrazeneca AB, Supreme Court, The Hague, The Netherlands, 3 November 2023, Case No. 22/01071, with thanks to Willem Hoyng, HOYNG ROKH MONEGIER, for sending in the judgment

No risk liability for patent holder AstraZeneca versus health insurer Menzis for enforcing a later retroactively invalidated patent.

The Supreme Court holds:

“3.4 The court of appeal has under 5.10 ruled that AstraZeneca in the period from March 24, 2012 [the expiry of the ABC – editor] to
June 10, 2014 [the annulment of the Dutch part of the patent – editor] did not know or should not have realized that there was a serious, not negligible chance that the patent would not survive opposition or invalidity proceedings. The court of appeal based this judgment on the following grounds.

“(1) In light of the judgment of the District Court of The Hague of 7 March 2012, in which the patent was deemed valid, Menzis’s position that in the relevant period there could not reasonably have been any discussion about the invalidity of the patent and that this invalidity was even evident can not be maintained.

“(2) It does not automatically follow from the conclusion of Gefvert et al. that the average skilled man in the art would have been motivated to develop an XR formulation of quetiapine and would have had a reasonable expectation of success. Therefore, Menzis’ argument that AstraZeneca’s position was clearly untenable, given the conclusion of Gefvert et al., is not valid.

“(3) The fact that the English court […] did not find the claimed invention to be inventive and that other foreign courts have also reached this conclusion does not mean that AstraZeneca knew or should have known that a serious, There was a non-negligible chance that the patent would not survive opposition or invalidity proceedings. In principle, the patent holder may rely on the validity judgment given by the Dutch court on the merits. In addition, the majority of foreign judges who ruled on the validity of the patent in the relevant period reached the same conclusion as the
Dutch court.

“3.5 The court of appeal has taken the circumstances mentioned above in 3.4 into account in conjunction with each other and has not based its judgment solely on one of those circumstances. To the extent that grounds 2.4 and 2.5 ignore this, they have no factual basis. The court of appeal also did not set too high a threshold for assuming culpability. It could rule that AstraZeneca could in principle rely on a validity judgment by the Dutch court om the merits, also in light of the fact that several courts abroad came to similar opinions at the time. The court’s judgment therefore does not hold an incorrect view of law. It is also not incomprehensible. The complaints as shown above in 3.3 therefore fail.”

The entire judgment (in Dutch) can be read here.

The judgment (in English) can be read here.