Rhodia Opérations S.A.S. v. Jiaxing Zhonghua Chemical CO., LTD., Jiaxing Guihus IMP & EXP CO LTD., Ningbo Wanglong Technology Co., LTD., Wanglong Group CO., LTD., District Court The Hague, Preliminary relief proceedings, 21 November 2014, Case no. C/09/470674
Rhodia holds a patent EP 2222627B1 (EP 627) that relates to the production of vanillin. Rhodia alleges that the vanillin offered or used by the defendants should be regarded as a product directly obtained by the application of method claims 16 and 17 of EP 627. The court rules that it is likely that EP627 would be invalidated in proceedings on the merits. The French patent 2495137 (FR 137) is considered to be the closest prior art. Starting from FR 137 the person skilled in the art would like to improve the selectivity of the condensation reaction and, in particular, would like to reduce the formation of DL-mandelic acid. Replacement of the continuous stirred reactor tank (CSTRs) as described in FR137 by a plug-flow reactor as described in EP627 is found to be obvious on the basis of common general knowledge.
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The decision also contains interesting consideration in respect of cross-border competence. The court ruled that it is competent to hear the claims against the Chinese entities as these were closely connected to claims against a Dutch entity which was originally also summoned; the case against the Chinese defendants and the Dutch defendant concern the same situation of fact and law. The possibility that the Dutch defendant might have been able to run an additional defence – as a result of further processing there would be no directly obtained product – does not mean that there is not a risk of irreconcilable decisions. The fact the claims against the Dutch entity were later withdrawn by the plaintiff does also not mean that the court loses its competence. In line with the Solvay/Honeywell decision of the CJEU the court also ruled that in preliminary relief proceedings there is no need to stay the proceedings in case of an invalidity defence regarding foreign European patents that are invoked, as its judgment only entails a preliminary assessment.
Read the decision (in Dutch) here.
Head note: Paul van Dongen, NautaDutilh
