ECJ on Interpretation of Art. 6 of the Brussels Convention.
Continuing my earlier posting: Last week, in the Case C-539/03, the European Court of Justice has dealt with a case of patent-related forum shopping:
"[...] Drs Primus and Goldenberg, who are domiciled in the United States of America, are the proprietors of European patent No 131 627.
On 24 March 1997, they brought an action before the Rechtbank te s'-Gravenhage against Roche Nederland BV, a company established in the Netherlands, and eight other companies in the Roche group established in the United States of America, Belgium, Germany, France, the United Kingdom, Switzerland, Austria and Sweden ('Roche and Others'). The applicants claimed that those companies had all infringed the rights conferred on them by the patent of which they are the proprietors. That alleged infringement consisted in the placing on the market of immuno-assay kits in countries where the defendants are established.
The companies in the Roche group not established in the Netherlands contested the jurisdiction of the Netherlands' courts. As regards the substance, they based their arguments on the absence of infringement and the invalidity of the patent in question.
By judgment of 1 October 1997, the Rechtbank te s'-Gravenhage declared that it had jurisdiction and dismissed the applications of Drs Primus and Goldenberg. On appeal, the Gerechtshof te s'-Gravenhage (Regional Court of Appeal) set aside the judgment and, inter alia, prohibited Roche and Others from infringing the rights attached to the patent in question in all the countries designated in it.
The Hoge Raad (Supreme Court), hearing an appeal on a point of law, decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
'Is there a connection, as required for the application of Article 6(1) of the Brussels Convention, between a patent infringement action brought by a holder of a European patent against a defendant having its registered office in the State of the court in which the proceedings are brought, on the one hand, and against various defendants having their registered offices in Contracting States other than that of the State of the court in which the proceedings are brought, on the other hand, who, according to the patent holder, are infringing that patent in one or more other Contracting States? (2) If the answer to Question 1 is not or not unreservedly in the affirmative, in what circumstances is such a connection deemed to exist, and is it relevant in this context whether, for example, - the defendants form part of one and the same group of companies? - the defendants are acting together on the basis of a common policy, and if so is the place from which that policy originates relevant? - the alleged infringing acts of the various defendants are the same or virtually the same?' [...]"
The ECJ finally concludes:
"[...] Article 6(1) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended most recently by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted as meaning that it does not apply in European patent infringement proceedings involving a number of companies established in various Contracting States in respect of acts committed in one or more of those States even where those companies, which belong to the same group, may have acted in an identical or similar manner in accordance with a common policy elaborated by one of them. [...]"
"A person domiciled in a Contracting State may also be sued:
where he is one of a number of defendants, in the courts for the place where any one of them is domiciled;
as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;
on a counter-claim arising from the same contract or facts on which the original claimwas based, in the court in which the original claim is pending;
in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the Contracting State in which the property is situated."
The amendment provided most recently by the Convention of 29 November 1996 is available on-line here.
my earlier posting: Last week, in the 
Case C-539/03, the European Court of Justice has dealt with a case of patent-related forum shopping: