EUPillar NV Praxair Holding and Praxair Inc. v. Advanced Technology Materials Inc.

Summary

The respondent, Advanced Technology Materials Inc. (“ATMI”) was the plaintiff in first instance. It is the holder of European Patent 1 000 291 B1 for gas cylinders. It sought provisional measures against PRAXAIR HOLDING nv, PRAXAIR PRODUCTION nv, PRAXAIR and PRAXAIR Inc. to stop them from manufacturing, distributing and promoting the sale of its own gas cylinders, known under the name “UpTime”, in violation of said patent. The first judge ordered Praxair to stop distributing leaflets and order informational or promotional materials where UpTime cylinders are presented as an alternative to the competing product of ATMI. Praxair lodges an appeal against this decision, but ATMI also appeals against part of the judgment since it would like to see that the court not only orders the promotion of UpTime products, but also the sale itself. The Court of Appeal grants ATMI’s claim for an order in those countries which are protected and designated by its European Patent. Art. 31 Brussels I Regulation does not prevent Belgian courts from taking extra-territorial measures insofar as there is a connecting factor. SHORT CRITIQUE The Court of Appeal does not differentiate between European and non-European claimants. The Court can rely on Art. 31 in the case against NV Praxair Holding, which is a company seated in Belgium, but it is less certain whether it can rely on the provisions of the Brussels I Regulation against the US defendant, Praxair Inc. (established in Connecticut, USA). Like other Belgian courts, the Court of Appeal interprets Art. 31 rather largely, by not only accepting its jurisdiction but also imposing a cross-border provisional measure. In his note under this decision, Kristof ROOX notes that in this case, a purely national order would have had a more far-reaching effect than this order which is now taken by the Court. All of the gas cylinders produced by Praxair, for all its international clients, are filled in Belgium. An order to stop using the cylinders in Belgium would therefore have had a worldwide effect. The Court has limited its order to the parts of the world which are designated in the European Patent held by ATMI. Therefore, Praxair can still export the gas cylinders – which are filled in Belgium – to other, non-European, clients which are not based in countries identified in the European Patent.