The European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters contains a number of provisions that are relevant to the enforcement of patents. Article 2 provides that the courts of a defendant's home country (i.e. where it is domiciled) have jurisdiction over the defendant for a wide variety of lawsuits even though the wrong complained of occurred in the territory of another signatory state. Where there are multiple defendants, Article 6 provides that the courts of any jurisdiction in which one of the defendants is domiciled has jurisdiction over all of them, at least as long as the same issues are involved. Article 24 provides that application may be made to the courts of a contracting state for such provisional, including protective, measures as may be available under the law of that state, if under this Convention, the courts of another contracting state have jurisdiction as to the substance of the matter. Article 16 of the Convention provides that only the courts of the country which issued a patent right can hold it invalid. Article 64 of the European Patent Convention provides that once granted the effect of a European Patent in any country in which it is in force is the same as that of a national patent.

The Hague District Court (the sole Dutch court having jurisdiction in patent matters) has taken advantage of these provisions to grant injunctions under European patents at least having effect throughout Europe. Its view has been that since a European patent has the same form in each country, its effects should be the same and that there is judicial efficiency if only one court has to determine issues of infringement. This practice has been the subject of some concern, especially in that the Dutch courts have used Article 24 in a procedure that gives the defendant only a limited opportunity to contest the validity of the patent in question. A number of cases have now arisen in the Netherlands and the United Kingdom which may clarify the situation.

In Coin Controls Ltd v. Suzo International (U.K.) Ltd, the English Patent Court was requested to enforce British, German and Spanish patents that had all originated from the same European Patent against defendants domiciled in England, Germany and Spain. The court struck out the pleadings insofar as they applied to the foreign patents. The judge agreed with the Dutch courts that initially if the conditions of Article 6 applied, the court had jurisdiction to deal with infringement of the German and Spanish patents but went on to hold that once the validity of the patents had been put into suit, the provisions of Article 16 came into play. The judge held that:


The Hague District Court did not agree. In Palmaz v. Boston Scientific B.V. it took the view that there were two ways to deal with the Article 16 issue. One was the approach taken in England in Coin Controls. The other, and in its view better, way was for the court initially seized of the case to retain jurisdiction over the infringement issues but to stay the proceedings until the courts competent to deal with validity (i.e. those in the country where the patent was effective) had reached a conclusion on the validity of the patent in suit. The approach of the English court was unacceptable because it meant that the jurisdiction of a court could not be established until after a defense was pleaded.

Some reining in of the Hague District Court may, however, result from the decision of the Hague Court of Appeal in Expandable Crafts Partnership v. Boston Scientific B.V. In this case, the issue was under what circumstances Article 6 of the Convention can be used to bring defendants having little connection with the Netherlands before the Hague District Court. The District Court's view had been that since the national patents resulting from a single European patent are the same and the law on infringement is substantially the same in all EU-member states, parties in other countries could properly be named as additional defendants in a case against a Dutch infringer since the issues before the court would be substantially the same. The Court of Appeal, however, looked to another provision of the Convention which deals with the question of when courts in one country should decline jurisdiction because the same matter was already being dealt with before the courts of another EU member state. In such cases Article 22 of the Convention provides that such action shall only occur where the cases are "so closely related that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings". In view of this provision and a European Court of Justice decision in Tatry v. Maciej Rataj which had held that the term "irreconcilable judgments" included cases where the reasoning differed in different countries even if the outcome was the same, the Hague Court of Appeal held that in cases where there were multiple defendants there must be a greater degree of connection between the defendants than the district court had required before Article 6 could be invoked to give rise to jurisdiction. Such a situation could arise for example where the defendants in different countries were related so that the acts of infringement could be regarded as one common activity based on one common design. In such cases the action should be brought in the jurisdiction where policy for the group of defendants is determined. In cases where jurisdiction does exist, however, the court disagreed with the English decision in Coin Controls and took the view that the court initially seized of the case should retain it, staying the proceedings where necessary for a ruling on validity from other countries. In the case of actions brought seeking interim relief under Article 24 of the Convention, staying the action might not be appropriate and the Court hearing the infringement action should weigh the chances of the foreign nullity action being successful. Unless there is a real chance that the foreign nullity action will be successful, a cross border injunction would be appropriate.

In subsequent cases of Baxter v. Pharmacia UpJohn and Augustine Medical Inc. v. Mallinckrodt Medical BV et al, the Hague District Court has held that the limitation in the Expandable Crafts decision that an action under Article 6 should be brought only in the jurisdiction where policy was made did not apply to infringements by members of groups of companies where the group structure was very complicated. In such cases one could not determine where policy was made. Nor should the Expandable Crafts holding be applied in cases where non-European defendants participate in coordinated action involving infringement, since in such cases determining the location of the policy-making body would not be relevant.

In the meantime, the English Court of Appeal, in Fort Dodge Animal Health Ltd. v. Akzo Nobel B.V., was faced with a request by British companies for an order to restrain a Dutch company from seeking an injunction in the Netherlands to enforce its British patent. The Court took the view that Coin Controls was correctly decided and that for Article 6 of the Convention to apply there had to be a necessary connection between defendants in the country in which the action was brought and those outside it. It did note the different views of the Dutch courts and so referred the question of the applicability of Articles 6, 16 and 24 of the Convention to patent infringement disputes to the European Court of Justice for a ruling.