In its decision of November 2, 2010, the Court of The Hague overturned a decision of first instance.
The Court ruled that the publication of a generic medicine in the so-called G-Standaard, constituted offering it with the intent of (subsequent) trading and thereby violated the exclusive right of the patent holder. The G-Standaard is a medicine database that is published by the Royal Dutch Association for the Advancement of Pharmacy.
According to the Court, the G-Standaard plays a crucial role in the marketing of medicines in the Netherlands, among other reasons because it contains a large amount of information on medicines and is used by pharmacists, general practitioners, health insurers, and pharmaceutical wholesalers.
The defendant argued that the publication per se did not constitute an offering of the generic because: the G-Standaard also mentions medicines that are not available in the market, the listing of the generic did not contain price information, and the inclusion in the G-Standaard was only motivated by the necessity to do so, to enable marketing of the generic in the future.
The Court dismissed this rebuttal with the argument that given the content and function of the G-Standaard the publication was the method of choice to inform the various market participants that a generic version of a particular drug would enter the market.
The Court also considered that the publication in the G-Standaard infringed the exclusive right of the patent holder because the Dutch Patents Act contains a broad definition of the term “offering”. The term should be read in a broad sense and includes not only the “offering for sale” but rather the offering in general, under whatever title, and irrespective of what those to whom the product is offered will do with it in the future.
In view of the above and the fact that publication in the G-Standaard influences the market behaviour of users as it is generally known that a generic medicine is considerably cheaper than the original name-brand medicine (for instance by postponing orders until market entry of the generic), the Court considered that the publication of the generic medicine in the G-Standaard constituted infringement of the patent.