In recent years, the case law of the European Court of Justice (ECJ), i.e. the highest judicial instance in the European Union, had denied the possibility that a the national court of one EU country could issue preliminary injunctions for other EU countries as well (so-called cross-border injunctions), even when the patent, parties and infringing product were the same.

Instead, in a very recent ruling of July 2012 the ECJ appears to have changed its position on this point.

In this new case, Solvay had started a lawsuit before a Dutch Court against several companies of the Honeywell group based in the Netherlands and in Belgium. Solvay had argued that Honeywell infringes Solvay’s European patent not just in the Netherlands, but also in other EU countries where the patent is in force, and had asked the Dutch Court to grant an injunction against all such companies for all such countries.

Struggling with the interpretation of the relevant EU law provisions, the Dutch Court had referred several questions to the ECJ to know, primarily, whether it could continue the proceedings against all defendants – despite the fact that one of them was located in a different country (Belgium) – and despite the fact that Solvay had asked for provisional measures effective in the Netherlands and in other EU countries.

In its new decision, the ECJ has found that “a situation where two or more companies established in different Member States, in proceedings pending before a court of one of those Member States, are each separately accused of committing an infringement of the same national part of a European patent which is in force in yet another Member State by virtue of their performance of reserved actions with regard to the same product, is capable of leading to ‘irreconcilable judgments’ resulting from separate proceedings…”.

Indeed, the relevant EU law provision provides that, where there are several defendants located in several EU countries, a single lawsuit may be started against all defendants before the Court of a single EU country, provided that “the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. Thus, in the new decision the ECJ has decided that where a Court of a certain EU country considers that otherwise there is the risk of irreconcilable judgments, that Court may hear a patent infringement case against companies located in other EU countries. According to the decision, it is up to the Court to decide whether, in the specific case, there is such a risk, but the ECJ has established that such a risk is possible and that it is possible to remedy to it by hearing the proceedings against all companies in a single Court.

In the same decision, the ECJ has also found that the relevant EU law does not preclude, in circumstances such as those at issue in the Solvay/Honeywell case, the possibility of applying to the Court of one EU country for provisional measures even in cases where the Court of another EU country has jurisdiction regarding the merits of the case. Thus, according to the new ECJ decision a patentee may apply for a preliminary injunction for EU country A before the Court of EU country B, even in the case that the defendant then argues, as a defence, that the portion of the patent valid in country A is not sufficiently valid for it to form the basis of a preliminary injunction.

Maybe also following the current “unifying” trend of the unitary patent project, this new ECJ decision thus appears to open the door again to cross-border injunctions in the EU.

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