michiel-robin
16 November 2021Jurisdiction reportsMichiel Rijsdijk and Robin Keyner

The Netherlands: Forum shopping 2.0

The plaintiff, Hanwha Solutions Corporation is part of the Hanwha Group. The Hanwha Group is a South Korean conglomerate active in, inter alia, solar energy. Hanwha is specialised in the development, production and sale of solar panels.

The opposing party in this case is LONGi Netherlands. LONGi is part of LONGi Group, also active in the field of solar energy and specifically the development, production and sale of solar panels. LONGi markets LONGi solar panels on the Dutch market. LONGi also has storage capacity (at a third party) where it stores the LONGi solar panels for export.

Background

The EU patent in suit discloses a solar cell. The patent was validated in several countries, but not in the Netherlands. Hanwha is currently registered as the patent holder in several EU countries.

Hanwha claims that LONGi keeps solar panels (bearing the patented solar cells), which fall under the scope of protection of the patent, in storage and offers them for sale in the EU. According to Hanwha, this makes LONGi responsible for the distribution of infringing products in Europe and for the sale of infringing products to customers in countries where the patent is in force.

“The court considered that it also has jurisdiction with regard to the claim on the alleged unlawful acting from LONGi.” - Michiel Rijsdijk & Robin Keyner, Arnold+Siedsma

On that basis Hanwha claims that LONGi should be ordered not to be involved in any way with (direct and/or indirect) infringement of the patent in the countries in which the patent is in force. Hanwha further claims that LONGi acts unlawfully towards Hanwha and/or fails to prevent infringement of the patent in the countries in which it is in force.

Jurisdiction of the Dutch court

The case has an international scope. Therefore, it must be established whether the Dutch court has jurisdiction in this dispute. LONGi rightly argued that the Dutch court does not have the jurisdiction to hear claims based solely on a non-Dutch patent or its infringement in countries other than the Netherlands. However, EU legislation provides for this situation on the following terms:

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