Statistical trends in Dutch patent cases

Since 2016 the patents team of Taylor Wessing in the Netherlands has kept various statistics of patent judgments of the District Court and Court of Appeal in The Hague. For obvious reasons, these statistics are based on a number of assumptions (eg for the time being, they relate to proceedings on the merits only (excluding preliminary injunction proceedings)) with the Court ruling on the validity of the patent relied on.

Based on these statistics we have obtained insight into a number of key issues, including:

• the total number of judgments in a specific year
• the ratio infringement and revocation proceedings
• the percentage of the patents being revoked
• the average time patent proceedings take
• the average time it takes before a judgments is rendered.

How many judgments were rendered in total in a specific year?

The figures stated below first of all provide insight into the number of judgments that have been rendered in proceedings on the merits as of 2016 (both infringement and revocation proceedings). In addition, these figures only relate to final judgments, ie interlocutory judgements have not been taken into account.

The first notable observation is that 2017 was a relatively busy year for the District Court. Furthermore, the number of rulings by the Court of Appeal over the years is more or less constant. Given the larger number of proceedings before the District Court, it seems that appeal is lodged in only part of the rulings in the first instance.

What is the ratio between infringement and revocation proceedings?

The ratio between infringement proceedings on the one hand and revocation proceedings on the other hand is also interesting; for the number of revocation proceedings is comparable with the number of infringement proceedings initiated. In other words, the alleged infringers or other interested parties quite often initiate proceedings themselves in The Netherlands.

We presume this is due to the fact that it is possible in the Netherlands, unlike in some other European countries, to initiate revocation proceedings while the opposition action relating to the patent concerned has not yet been finalized.

Infringement proceedings

Revocation proceedings

What percentage of patents are revoked?

When determining the percentage of the patents that are revoked, a partial revocation is considered as a (full) revocation, as the requested infringement injunction was denied in each of those cases.

Incidentally, the below figures also include some proceedings where invalidity was argued as a defence against the infringement but no revocation of the patent was requested.

The number of cases where the Court ruled that the patent is invalid as compared to the total number of cases are stated in parentheses.

In 2016, a patent owner was well-placed to uphold its patent (over 50 %); in 2017 and 2018, however, the situation changed rather dramatically. For example, 2018 was a really bad year for patent owners, with the revocation percentage being over 88% of the total number of cases. This obviously begs the question whether the District Court and the Court of Appeal have become more critical when assessing the validity of the patent.

For the time being, the year 2019 once again seems to favour patent owners.

How long do patent proceedings take on average?

The statistics also provide insight into the average duration of patent proceedings. In this framework, we first of all listed the duration of proceedings from the date the writ of summons was served up until the date a judgment was rendered.

The first striking observation is the fact that, despite the possibility of opting for an accelerated regime in patent cases, intended to promote a quick and efficient judicial process, it takes almost two years on average for the District Court to render a judgment. While the duration is usually somewhat shorter before the Court of Appeal, the Court of Appeal also has its share of extreme cases.

The durations are in any case adversely affected by the fact that, due to work pressure at the District Court and Court of Appeal, it takes a relatively long time for a date for oral arguments to be set after the last documents have been exchanged.

Again, the total number of rulings of the courts concerned are in parentheses.

On average, how long does it take for judgments to be given?

Another reason why the duration of the entire procedure is relatively long (as stated above), is the fact that the District Court and the Court of Appeal on average require a little over six months to render a judgment.

Again, the total number of rulings of the courts concerned are in parentheses.

We will continue to gather and extend the statistics in years to come and provide an update of various insights that can be derived from the figures each year.