1 February 2013Jurisdiction reportsMichiel Rijsdijk

Pressing problem: printing plates in the Netherlands

Belgian company Agfa, a large supplier of plates for the offset printing industry, claimed that Xingraphics products indirectly infringe its patent.

The object of the invention in question is to provide a method for making a positive photosensitive lithographic printing plate, which does not require operation under yellow light and allows it to be carried out under normal white light containing ultraviolet light.

Agfa claimed, alongside ancillary claims (for an infringement decision, an injunction and compensation), prohibition of Xingraphics’ products.

The defendant, in turn, claimed an order prohibiting indiscriminate claims alleging infringement of its patent and also claimed that the patent was void. It also requested a declaratory decision that its FIT plates do not (indirectly) infringe the Dutch and foreign parts of the patent. In answer to the counterclaims, Agfa partially challenged the jurisdiction of the court due to its statutory place of business.

The district court of The Hague denied Agfa’s claim. The court also denied Xingraphics’ counterclaims and declared that it lacks jurisdiction in the matter of the declaratory decision of non-infringement for the foreign parts of the patent.

In anticipation of the appeal, Agfa started interim injunction proceedings and claimed to have new evidence of infringement by Xingraphics and requested preliminary relief. The judge in interim injunction proceedings however, saw no reason to deviate from the earlier sentence and no urgent interest to grant preliminary relief.

On appeal, Agfa requested granting the same remedies requested at the first instance. Xingraphics on the other hand still wanted to declare the patent void.

“THE COURT OF APPEAL RULED THAT XINGRAPHICS HAD NO LEGITIMATE INTEREST TO HAVE OVERSIGHT OF AGFA’S CHEMICAL ANALYSES.”

In an interlocutory judgment, the court of appeal ruled that Xingraphics had no legitimate interest to have oversight of Agfa’s chemical analyses. Xingraphics had asked for oversight, based on article 843a Rv, due to Agfa’s legal obligation under article 21 Rv to state all the relevant facts for truth and completeness. The court of appeal, however, found that there was no need for this disclosure and denied Xingraphics’ claim.

The court of appeal found that the grounds on which Xingraphics’ claim was based are immaterial. First, Xingraphics claimed that the fact the photosensitive material is sensitive also to ultraviolet light has no basis in the original patent application. The court disagreed and rejected the claim regarding added matter.

For the skilled person the feature is directly and unambiguously able to be derived from the application. Second, Xingraphics claimed that there was a lack of novelty due to a variety of earlier patent applications. The court however found that the patent applications Xingraphics referred to were not prejudicial to novelty.

Third, the court also found that there was indeed an inventive step because of the use of plates that are insensitive to ultraviolet light and therefore do not have to be used under a yellow safety light. Finally, the court found that there was no lack of replicability.

Considering the above, the court found Agfa’s patent is valid and denied Xingraphics’ claims.

The court also found that Xingraphics did indirectly infringe the Dutch part of Agfa’s patent. This is because the FIT plates have the same four qualities determined in the first patent claim. Those qualities include “a change other than a chemical change”, “a lack of sensitivity to ultraviolet light”; “a light-absorbing pigment” and “a high-molecular connection”.

Agfa’s claims were sustained. However, the court noted that they are only applicable in the Netherlands, on indirect infringement, and only concern plates that were traded under the name FIT.

In addition, the court found that it lacked jurisdiction over Xingraphics’ claims because it only has jurisdiction in the Netherlands and Agfa is a Belgian company. Therefore, Xingraphics’ arguments were rejected.

Finally, due to article 1019h Rv, the court ordered Xingraphics to pay the costs of the proceedings. Agfa’s costs were €135,000 in the first instance and €200,000 on appeal.

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