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As a Dutch patent litigation lawyer, I act for companies in patent disputes in the Netherlands, as claimant or as defendant. I am a partner at MAAK Advocaten in Amsterdam and an attorney-at-law specialised in intellectual property, with a focus on complex, often cross-border litigation before national and international courts. Which court and which route apply depends on your patent.
My profile is on the page of Jan Jacobi, partner and intellectual property lawyer. How a patent holder detects and documents an infringement is explained in our guide to patent infringement in the Netherlands, and the wider picture in our overview of intellectual property law in the Netherlands. This page is about having a lawyer at your side in the dispute.
Which Dutch court hears a patent dispute?
In the first instance, the District Court of The Hague and its preliminary relief judge have exclusive jurisdiction in the Netherlands for patent infringement claims (Article 80(2)(a) Dutch Patents Act). Annulment claims go to the same court (Article 80(1)(a)).
For European patents, the Unified Patent Court (UPC) can also be competent: the Dutch act applies without prejudice to its jurisdiction (Article 79a). A first-instance judgment can generally be appealed (Article 332(1) Rv), and on appeal parties must again be represented by a lawyer (Article 353(1) Rv).
Who may represent a foreign company in a Dutch patent case?
A lawyer. Outside cantonal cases, parties cannot litigate in person (Article 79(2) Rv). A defendant in summary proceedings may appear in person, but not through a representative who is not a lawyer (Article 255(1) Rv).
Searching for a Dutch patent lawyer can lead to two professions. A patent attorney (octrooigemachtigde) is a separate profession from the lawyer and may speak at hearings in patent disputes, without prejudice to the lawyer’s responsibility (Article 82). I am a lawyer (advocaat). Before the UPC, parties are represented by lawyers or qualified European Patent Attorneys (Article 48(1) and (2) UPC Agreement).
How does a patent infringement action work in the Netherlands?
The patent holder can enforce the patent against anyone who, without entitlement, performs an act listed in Article 53 (Article 70(1)). A Dutch patent holder must file a state-of-the-art search report with the writ, or the claim is inadmissible (Article 70(2)).
On the merits the claimant can seek damages, but only from someone who knew or reasonably should have known that its acts infringe (Article 70(4)), and withdrawal or destruction of infringing goods (Article 70(7)). Which remedies are worth claiming is a strategic choice.
For a defendant, the first questions are the scope of the claims and whether a nullity counterclaim is available (see below).
Important: A competitor sends your company a letter claiming that your product infringes a European patent and sets a short deadline. From the moment you receive it, a court may regard you as knowing of the patent, and damages can be claimed from someone who knew or should have known (Article 70(4)). Have a specialised patent litigation lawyer review the letter before you reply.
Can evidence of infringement be secured before the proceedings start?
Yes. The preliminary relief judge can grant leave for provisional measures to protect evidence, including conservatory seizure, a detailed description and taking samples, if infringement is sufficiently plausible (Article 1019b(1) Rv). These measures can be taken without hearing the other party.
Leave is refused insofar as confidential information is not protected (Article 1019b(4)). If a measure should not have been taken, the party that asked for it can be ordered to compensate the damage (Article 1019g).
Whether a seizure fits your case depends on what you can already show and on the damage risk if the measure proves unjustified.
Important: A bailiff arrives at your Dutch distributor or warehouse with a court order to describe and sample your product. Leave can be granted without hearing you (Article 1019b(3)), and the party that obtained it can be liable for damage if the measure was not justified (Article 1019g). Contact a patent litigation lawyer the day the bailiff comes, before you hand over more than the order requires.
Facing a patent dispute in the Netherlands, or about to start one? Send me the patent, the letter or the product details through my profile page.
When are summary proceedings the right route in a patent dispute?
When the matter is urgent: an immediate provisional measure must be required in view of the parties’ interests (Article 254(1) Rv). The preliminary relief judge of the District Court of The Hague hears these claims (Article 80(2)(a) Dutch Patents Act).
In urgent cases, in particular where delay would cause irreparable harm, the judge can order a measure against an imminent infringement without summoning the alleged infringer (Article 1019e(1) Rv). The order can be made conditional on security, and the alleged infringer can ask for review (Article 1019e(2) and (3)). The judge sets a reasonable term for starting the main proceedings; if none are started, the measure lapses once the defendant files a declaration (Article 1019i(1)).
How is the validity of a patent attacked or defended?
A Dutch court annuls a patent insofar as a ground in Article 75(1) applies, for example lack of patentability or an insufficiently clear and complete description. Anyone may bring the claim on grounds (a) to (d) (Article 75(1) and (3)).
Anyone who claims annulment of a patent granted under the Dutch act, including by counterclaim, must file the advice of Octrooicentrum Nederland on the grounds, or the claim is inadmissible (Article 76(1), Article 15). In a dispute on a European patent the court can stay the case while an opposition is pending at the European Patent Office or a UPC action has been filed (Article 83(4)).
Whether to attack validity, and when, shapes the whole case, for the claimant as much as for the defendant.
How do European patents and the Unified Patent Court fit in?
Whether the UPC or a Dutch court hears a European patent dispute depends on the transitional regime. The UPC has exclusive competence for infringement, revocation and provisional measures (Article 32(1) UPC Agreement); national courts remain open during a seven-year transition (Article 83(1)).
A proprietor can opt out unless an action has already been brought before the UPC (Article 83(3)), and can withdraw the opt-out unless one has been brought before a national court (Article 83(4)). The transitional period can be prolonged (Article 83(5)).
Important: You hold or are sued on a European patent. An opt-out is possible only while no action is pending before the UPC, and its withdrawal only while none is pending before a national court (Article 83(3) and (4) UPC Agreement), so the forum choice can be hard to reverse. Have a lawyer who handles patent litigation review the options before you file or answer a claim.
Who pays the costs of a patent case?
On request, the losing party is ordered to pay the reasonable and proportionate legal costs and other costs of the winning party, unless fairness opposes (Article 1019h Rv). It covers rights under the Dutch Patents Act 1995 (Article 1019 Rv).
It works both ways: a losing claimant is exposed to the defendant’s costs. Your own costs depend on the technical complexity, the evidence and the number of procedures.
Fictional example: a trade fair in three weeks
A foreign manufacturer learns that a competitor will show a copy of its patented machine at a Dutch trade fair in three weeks. A case on the merits would come too late, so summary proceedings are weighed against the risk of damages if the measure proves unjustified. The competitor would instead test whether the patent can be annulled and whether the machine falls within the claims.
When do you need a Dutch patent litigation lawyer?
As soon as a court action in the Netherlands is realistic: parties cannot litigate in person (Article 79(2) Rv), although a defendant in summary proceedings may (Article 255(1)). Involve a lawyer earlier: before you answer a letter or accept an order.
A technical specialist can compare the claims with the product. The lawyer decides the legal position, the court and procedure, and what you tell the other side.
| Your situation | What is at stake | Why a lawyer, not only a technical adviser | What has to be assessed |
|---|---|---|---|
| You receive a cease-and-desist letter or a writ | Damages need knowledge of the infringement (Article 70(4) Dutch Patents Act); withdrawal or destruction of goods (Article 70(7)) | Reply, forum, counterclaim and deadlines are legal choices; lawyer-only proceedings (Article 79(2) Rv) | Letter and patent, forum and deadlines; whether to reply or defend |
| You see infringement and want evidence first | Leave for seizure, description or samples (Article 1019b Rv); liability if unjustified (Article 1019g) | Framing the request decides whether leave is granted and how much risk you carry | What evidence exists; whether to request leave; the main case that follows |
| A bailiff arrives with an order | Measures without a hearing (Article 1019b(3)); confidential information (Article 1019b(4)) | You need an immediate view on scope, confidentiality and your response | Scope of the order and confidentiality; how to respond |
| A launch or fair is days away | Urgent measure (Article 254(1) Rv; Article 1019e Rv) | Urgency, security and validity risk must be weighed together | Urgency and security; the term for the main case (Article 1019i) |
| A European patent or the UPC is involved | Competence of the UPC or a national court (Articles 32 and 83 UPC Agreement) | The choice of forum can be hard to reverse | Opt-out status and pending actions; which forum |
Who will act for you in a patent dispute?
I will. I am a partner at MAAK Advocaten in Amsterdam and an attorney-at-law specialised in intellectual property. I litigate and advise in patent disputes, including cross-border proceedings before national and international courts.
I act as a patent infringement lawyer in the Netherlands for claimants and defendants. I spent several years in-house at a listed multinational in London, which gives me an eye for commercial and strategic interests in a dispute. I also advise on the protection and enforcement of intellectual property rights, including the drafting of (license) agreements, as a dispute can end in a licence.
Frequently asked questions about patent litigation in the Netherlands
Can the defendant attack the patent in the same case?
Yes, by a counterclaim for annulment. For a patent granted under the Dutch act it must be accompanied by the advice of Octrooicentrum Nederland (Article 76(1)). The grounds are in Article 75(1).
Does a claimant need a search report to enforce a Dutch patent?
A holder of a patent granted under the Dutch act must file the result of a state-of-the-art search with the writ of summons, and in summary proceedings at the hearing. Without it the claim is inadmissible (Article 70(2)).
Can I claim the infringer’s profits as well as damages?
You can claim surrender of the infringer’s profits, with an account, in addition to damages; if the circumstances do not justify surrender, the judge can award damages instead (Article 70(5)). Damages require that the infringer knew or should have known (Article 70(4)).
What if a provisional measure was wrongly granted?
The party affected can ask the court to order the applicant to compensate the damage the measure caused, if the measure should not have been taken or no infringement was made or threatened (Article 1019g Rv). That is a reason to weigh a request for seizure or an ex parte order carefully.
Can the court order the infringer to say where the goods come from?
Yes. The patent holder can claim an order that the infringer discloses everything it knows about the origin and distribution channels of the infringing goods (Article 70(10)). The judge can also hear a third party on this information (Article 1019f Rv).
When should I contact a Dutch patent litigation lawyer?
Contact one before you reply to a letter, when a bailiff arrives with an order, before you file for evidence or urgent measures, and when a European patent raises a forum question. At MAAK Advocaten, a lawyer can review the patent, the documents and the deadlines; the position in your situation needs a specialised legal assessment.
Legal framework and sources
- Dutch Patents Act 1995 (Rijksoctrooiwet 1995): Articles 15, 53, 70, 75, 76, 79a, 80, 82 and 83(4)
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Articles 79, 254, 255, 332, 353, 1019, 1019b, 1019e, 1019f, 1019g, 1019h and 1019i
- Agreement on a Unified Patent Court, OJ C 175, 20.6.2013, p. 1: Articles 32, 48 and 83
Are you a claimant or defendant in a patent dispute in the Netherlands and need a lawyer who litigates? Put your situation to me through my profile page. — Jan Jacobi
