In a recent ruling by the Court of The Hague C/09/545302 /
KG ZA 17-1636, Pfizer and Ono faced each other over an alleged
abuse of German process law by Pfizer.
In short, Ono wished to put an end to what it views as the
unlawful stalling, by Pfizer, of the grant of its patent
application EP2206517 A1. Through this application Ono seeks to
protect immunopotentiating compositions comprising anti-pd-l1
Pfizer started a reclamation procedure in Germany in order
to obtain co-owner-ship of EP'517. However, Pfizer filed the
reclamation procedure after previously having filed third party
observations against the patent application. The latter was put
forward as proof by Ono that Pfizer had no stake in EP'517,
which would make the reclamation procedure unlawful. The
reclamation procedure resulted in a suspension of the grant
procedure of EP'517 by the European Patent Office (EPO).
Subsequently, Pfizer also failed to comply with Ono's request
to cooperate in ending the suspension of the grant procedure.
Accordingly, Ono claimed that Pfizer had acted wrongfully
towards Ono, which wished to maintain EP'517 in the Netherlands
among other countries.
Ono primarily demanded that Pfizer be compelled to instruct
the EPO to resume the grant procedure of EP'517. The subsidiary
demand sought to make Pfizer withdraw its reclamation procedure
and forbid it from filing a new reclamation procedure before
EP'517 is granted.
The court observed that the US-based Pfizer does not have an
address within the European Union. Accordingly, competency of
the court must derive from Article 6 Brussels I bis-Vo in
combination with the Dutch Code of Civil Procedure
(Rechtsverordeningen, Rv). In layman's terms, cause (locus
actus) or damages (locus damni) must have occurred in Dutch
jurisdiction for the court to be competent.
The court did not accept Ono's plea that damages occured
within Dutch jurisdiction due to an inability to enforce EP'517
in the Netherlands as a result of the suspension.
The court was of the opinion that the apparent desire of Ono
to enforce EP'517 after grant, if so desired, in the
Netherlands, is not substantial enough to render the court
competent. In line with this reasoning the court declined
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