Alternative IP Dispute Resolution Approach saving
EUR 300.000 on litigation costs
The MBrands v. Kubus case history shows an example of how the loosing party in this patent litigation case could have saved at least EUR 300.000 on patent litigation costs and the winning party could have recovered all its costs as a result of an early solution.
This would have been possible if the Alternative IP Dispute Resolution Approach had been applied from the start of the dispute.
The patent in question concerned has not been pre-examined by the Dutch Patent Office (Dutch Patent Law 1995). A novelty search has apparently not been carried out by the applicant, If so, the applicant has had no proper idea at all about the patentability of the subject matter of the patent application filed. Only in case the applicant decides to file corresponding patent applications in other countries within 12 months after filing of the first patent application (‘premier depot’), a novelty search has to be carried out. The Dutch Patent Office (‘Octrooicentrum Nederland’) has no examining division anymore. The novelty searches have been farmed out to the Examining Division of the European Patent Office in The Hague
Competitors confronted with an infringement action under such a non-examined patent face a difficult task to have such an obstacle to their business activity removed. It is like a wheel-clamp. It takes a relatively long time and costs money to get it off the wheel (http://www.dickvanengelen.nl/files/Artikelen/2004%20Van%20Engelen%20-%20Het%20Nederlandse%20registratieoctrooi%20-%20een%20wolf%20in%20schaapskleren%20-%20IER.pdf )
In the MBrands v. Kubus patent litigation case it took 3 years to get the wheel clamp off. The Appeal Court The Hague
For both parties the Alternative IP Dispute Resoltion Approach would have provided a much better and less expensive solution to the patent dispute. They may at the end of the day even have decided to co-operate and develop a business relationship rather than continue the patent fight .
This case shows that a decision to start patent litigation in The Netherlands will mean embarking on an uncertain journey. One knows where to start but even by the best professional advisors (patent attorneys and attorneys at law specialised in patent law) it cannot be predicted with more than 50% certainty how long the journey will take and where it will end. Furthermore the longer the journey takes the higher the risk for the loosing party that it will in the end have to pay not only the legal costs of its own attorneys but also of those of the winning party.
Following the search report of the examiner of the European Patent Office, the District Court The Hague Appeal Court The Hague
The Patent Office and the courts only deal with cases at the request of one of the parties. Thus parties leave the control of the dispute in their hands and should therefore as a consequence accept that the cost of solving the dispute could catapult into six to seven figure amounts.
('Alles draait om de claims' http://www.octrooicentrum.nl/index.php/Extra-informatie-algemeen/dossier-inbreuk-alles-draait-om-de-claims.html )
The Hague, 14 July 2012
Jowi Burger
Jowi IPS Intellectual Property Services Mient 288, 2564 LL The Hague, The Netherlands
ABN AMRO Bank: nr. 507797574, Chamber of Commerce The Hague
blog: http://jowi-ips.blogspot.com General Conditions: http://jowiipsgeneralconditions.blogspot.com/