On June 13, 2006, in two related decisions, The European Court of Justice threw light on cross-border injunctions in patent cases.
In the first case, Roche versus Primus, the question was whether it is possible, in one action before a national court, to not only impose an injunction on the Dutch company of Roche, but also on all other companies of Roche in the other EU member states. The Court has now judged explicitly that this is not possible. With this, the cross-border injunction, once very popular in the Netherlands, definitively seems to be off.
In a second case of GAT versus LUK, a decision was given on a related problem. In Germany, parties were litigating on the question of whether there was infringement in France. Although this seemed possible for the question of infringement as such, it has been judged that only the French court has jurisdiction since the validity of the patent in France was brought forward in the proceedings. The Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters provides inter alia that validity of the patent is a matter for the national court. It is not relevant at what moment the validity was brought forward in the proceedings. This decision also means that a cross-border injunction will no longer be possible, because a party accused of infringement will almost by definition bring up the validity.
Both rulings make it particularly clear that there is a need for a system of supranational jurisdiction in the field of infringement and validity, for instance as proposed in the EPLA (European Patent Litigation Agreement).