EUPillar S.P.R.L. Adi Roelandt Import-Export v S.P.A.S. Plantefort-Expansion and S.P.A.S. Corderie Vincent de Romanet et cie and S.P.A.S. Plantefort-Expansion v S.A. Sita Wallonië - Joined cases A/08/3153 and A/09/01180

Summary

Plantefort is the holder of a European patent on a cover for containers. Corderie Vincent is the licensee of this patent, in Belgium and other countries, and also distributes the covers. One of its clients is Sita Wallonië (the defendant in the second case). Adi Roelandt (the claimant in the first case) is a company specialised in the production and development of tarpaulins to sheet open containers. Adi Roelandt also delivered covers to Sita Wallonië. Corderie Vincent sent two registered letters to Adi Roelandt writing that the covers produced by Adi Roelandt infringed their patent on 9 April 2008 and on 13 May 2008. On 11 June 2008, Adi Roelandt sued Corderie Vincent before the Commercial Court of Ghent (i.e. the current proceedings). Plantefort had brought proceedings against Sita Wallonië on 13 February 2009 before the Commercial Court of Liège. The Liège court ordered to join the proceedings to the case which was pending before the court in Ghent on 23 April 2009. Adi Roelandt seeks a declaration of non-infringement for every country where Plantefort’s patent is in force, and at least for Belgium, France and The Netherlands. Plantefort contests the jurisdiction of the court to take such a cross-border measure. Adi Roelandt bases the jurisdiction of the court on Art. 5(3) of the Brussels I Regulation which confers jurisdiction to the place where the harmful event occurred in matters relating to tort. The Commercial Court of Ghent decides that Adi Roelandt cannot rely on Art. 5(3). By merely sending two registered letters, in an attempt to initiate negotiations which were broken off by Adi Roelandt, Plantefort did not commit any tort. Art. 22(4) Brussels I Regulation stipulates that “The following courts shall have exclusive jurisdiction, regardless of domicile: […]in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of a Community instrument or an international convention deemed to have taken place.” In its written conclusions submitted to the court, Adi Roelandt had explicitly asked the court for permission to contest the validity of the patent held by Plantefort at a later time. Adi Roelandt can now hardly maintain that the validity of the patent is not called into question in the current proceedings. The Court has jurisdiction solely over the alleged infringement in Belgium and lacks jurisdiction to take the cross-border measure requested by Adi Roelandt.