LS&HC Horizons 2022 - Flipbook - Page 44
Hogan Lovells | 2022 Life Sciences and Health Care Horizons
44
Patents, Litigation, and Beyond
The Netherlands: Liability towards health insurers
for patent enforcement against generics
The Dutch Courts are expected to continue dealing with issues
relating to patentee liability towards third parties for patent
enforcement against another party. On 28 December 2021, the
Court of Appeal of The Hague held that AstraZeneca (AZ) was not
liable towards health insurer Menzis for the enforcement of a patent
infringement injunction against a generic company, where the patent
was later held invalid.
Menzis alleged that it had suffered damages by having to reimburse
the price of the originator product rather than the price of a generic
product. The Court of Appeal considered that there must be some
form of culpability on the part of AZ in order for liability to arise.
The Court did not need to answer the legal question whether AZ
would have been liable against Menzis if AZ had known or should
have known that there was a serious chance that the patent would be
revoked, as it was considered that AZ did not know nor should have
known this. The mere fact that the patent was later revoked did not
mean that AZ knew or should have known that the patent was invalid.
The Court of Appeal did not establish what the legal test would be for
establishing patentee liability towards a third party for enforcement
of an injunction against another party. Nevertheless, it follows from
the Court’s decision that liability against a third party is not easily
accepted. The decision is open to Supreme Court appeal.
Ruud van der Velden
Partner, Amsterdam
Dirk-Jan Ridderinkhof
Senior Associate, Amsterdam
