Amendment to Dutch Patents Act (Rijksoctrooiwet) Allows for Extemporaneous Preparation of Medicine in Certain Circumstances

Posted in dutch patents, governing law, health care, intellectual property, Intellectual Property Litigation, patents, pharmaceuticals

Article 53 (3) Dutch Patents Act

As of Feb. 1, 2019, the Dutch Patents Act 1995 (DPA) was amended to include a limitation of the exclusive right of the holder of a patent on a medicine. The exclusive right now includes an important exception in DPA Article 53(3):

The exclusive right…does not extend to the preparation for immediate use for individuals on the basis of a medical prescription of medicines in pharmacies, nor acts concerning the medicines so prepared.

This GT Alert examines this limitation. Under what conditions is a pharmacist allowed to prepare a patented medicine?

Click here to read the full alert.

Consumer Duty to Report a Lack of Conformity (Product Defect) Further Explained by Supreme Court in the Netherlands

Posted in Dutch Supreme Court, European Directive, litigation, products liability

Introduction

A consumer who has purchased a nonconforming (defective) product must report the lack of conformity to the seller within two months of discovery of the deficiency. See Article 7:23, Subsection 1 of the Dutch Civil Code (DCC); and the implementation of Article 5, Subsection 2 of the European Directive 1999/44/EG, which refers to the “detection” of the lack of conformity.

However, the moment of consumer discovery/detection of the lack of conformity was recently explored in a judgement (opinion in Dutch) by the Dutch Supreme Court (Hoge Raad) in the Netherlands, which ruled against the sellers.

Lack of Conformity

An object lacks conformity when it does not have the qualities a buyer can reasonably expect given the nature of the object (Article 7:17 DCC). The assessment of object conformity in consumer sales agreements includes statements made by the seller that could influence purchaser expectations (Article 7:18 DCC). Pursuant to Directive 1999/44/EG and Dutch consumer law, a consumer is defined as a natural person acting for purposes unrelated to his trade, business, or profession.

After reporting the lack of conformity to the seller (with reasonable speed after discovery), the buyer may demand that the seller: i) supplies what is missing, ii) repairs the supplied object, or iii) replaces the object. The seller is responsible for related costs. Alternatively, the consumer can rescind (ontbinden) the purchase agreement or reduce the price in proportion to the lack of conformity.

Case

The above-referenced Supreme Court case was decided on 15 February 2019 and concerned a horse that plaintiffs (consumers) bought from the defendant (seller) in February 2013. Before the purchase, the horse was inspected by a vet, who found it fit for use as a dressage horse. In April 2013, the horse started showing problems during training; the problems got progressively worse. A second examination at the end of August 2013 revealed that the horse had physical motor problems that had been present at the time of the purchase. Five months after the problem began to show, plaintiffs reported the lack of conformity to defendant.

The court of appeals in Arnhem-Leeuwarden found that five months was too long for plaintiffs to have waited to provide the notice of lack of conformity to defendants. The plaintiffs filed an appeal in cassation and argued that “discovery” did not occur when the problem first showed; they argued it only occurred once the defect was officially established by the vet, i.e., after the second examination.

The Advocate-General, advisor to the Supreme Court, concluded the appeal in cassation should be rejected, as the plaintiffs had to assume with a sufficient degree of probability (“voldoende mate van waarschijnlijkheid”) that the horse lacked conformity when the problem first began to show.

Supreme Court Judgement

The Supreme Court disagreed with the Advocate-General, holding that although the horse showed problems from April 2013 onwards, there was no reason to believe it lacked conformity. According to the Supreme Court, the clock started running on plaintiffs’ duty to report the lack of conformity to the seller at the moment the defect was established by the second examination, not when the horse began to show problems.

Relevance to Practice

Based on this decision, it could be argued that the consumer’s duty to report a lack of conformity to the seller starts from the moment the defect is established, and not when the purchased object is showing problems. However, based on case law involving non-consumers, the moment at which a purchased object begins showing problems still may be the starting point to provide notice to the seller.

This judgement strengthens the position of consumers. Companies selling products to consumers could face a longer time frame before consumers are required to issue notices of a lack of conformity, as the “discovery moment” pursuant to article 7:23 DCC, as well as the “detection moment” pursuant to Directive 1999/44/EG, will likely occur when lack of conformity is established, which might be later than when the lack of conformity first occurs. This is a fundamental consumer right that cannot be modified or limited by companies in contracts.

LIBOR and “No-Deal” Brexit

Posted in Brexit, EU

One of the consequences of a “no-deal” Brexit would be that the United Kingdom would no longer have access to the European financial market. This would affect LIBOR as a trusted and widely used benchmark.

LIBOR vs. EURIBOR

Currently, two relevant benchmarks exist in the European Union: LIBOR and EURIBOR. LIBOR stands for “London Interbank Offered Rate” and is a benchmark that is used for – among other things – loans based on Loan Market Association documentation. LIBOR is made available in five different currencies: U.S. dollar, British pound, Japanese yen, Swiss franc, and euro. EURIBOR stands for “Euro Interbank Offered Rate” and is, simply put, the interest rate at which European banks lend money to each other. EURIBOR is only available in euros. Both benchmarks are determined daily, but while LIBOR focuses on the London banking system, EURIBOR takes into account the entire European Union.

Developments around LIBOR

LIBOR has been the subject of increased scrutiny after it emerged that certain banks had manipulated LIBOR rates. Furthermore, insufficient activity in the unsecured interbank market raised questions about the sustainability of the LIBOR benchmark. Closely related to these developments is the new EU Benchmarks Regulation (EU) nr. 2016/11 and the development of a new secured overnight interest rate by the European Central Bank (ECB). The Benchmarks Regulation went into effect on 1 January 2018 and includes a two-year transitional period. The new interest rate for the euro will be based on data already available to the Eurosystem and is anticipated to be finalized before 2020.

The Future of LIBOR

Andrew Bailey, chief executive of the UK Financial Conduct Authority (FCA), has spoken to all current panel banks about agreeing voluntarily to sustain LIBOR until the end of 2021. However, a “no-deal” Brexit most likely will cause LIBOR to lose its authorized benchmark status in the European Union. This would leave nine months for the reference rate’s administrator to reapply as a third-country provider. Thus, even if LIBOR survives until 2020, a no-deal Brexit could come with enormous risks.

Takeaway

Market participants may wish to review and consider the amendment and waivers provision in loan agreements being concluded now, taking into account a possible “no-deal” Brexit and the development of the new overnight interest rate by the ECB. Furthermore, lenders should closely review the requirements posed by the Benchmarks Regulation to ensure they are compliant with its provisions.

To read more about Brexit, click here.

Questions about this information can be directed to:

˘ Not admitted to the practice of law

Modernization of EU Copyright Rules: A Good Idea With Bad Results?

Posted in Copyright, EU, European Union Law

In a period of ongoing modernization of European legislation concerning the European Digital Single Market, the regulation of online copyright is a continuing concern. The proposed new copyright directive (‘the Copyright Directive’) would bring far-reaching changes to European copyright law and has been heavily debated by the member states over the last two years. It has also been intensely criticized in the media.

On Wednesday, 13 February 2019, however, a breakthrough was achieved when the three branches of European government – the European Commission, the Parliament, and the Council of the EU – reached a political agreement on the Copyright Directive. In the coming months, the European Parliament and the Council of the EU will have a final vote on the Copyright Directive.

At the same time, the media publish extensively about the directive. Their most common complaint concerns Article 13 and the duty of ‘online content sharing providers’ to filter content. Household-named tech giants are the online content sharing providers (‘Content Sharing Providers’). Some argue that such filtering could violate people’s freedom of expression, as defined in Article 10 of the European Convention of Human Rights.

But where does this fear of ‘filtering of the internet’ come from? Does it really pose a threat to human rights? And are there no countervailing advantages to be provided by the Copyright Directive?

Protection of the Creative Content Sector

To start with the last question: Yes, there are advantages, but only for a limited group of stakeholders. One of the objectives of the Copyright Directive is to create a ‘fairer and sustainable marketplace for authors, performers, the creative industries and the press’.

While these parties are at the heart of content creation and the creative sector, their remunerations are not considered reflective of the extensive online use of their content by Content Sharing Providers. This use is generally not addressed in agreements between creators and such providers.

Consequently, if content published on the Internet infringes a creator’s copyright, the content can only be removed afterwards, and no fixed arrangements on remuneration and/or compensation for damages are in place to make the creators whole. Uncertainty about the specific use of content creators’ material negatively affects their ability to determine appropriate use and remuneration. The European Union therefore finds it important to ‘foster the development of the licensing market between rightholders and the Content Sharing Providers’. These licensing agreements should be ‘fair and keep a reasonable balance for both parties’. (Recital 37 of the last proposal for the Copyright Directive).

Article 13 Copyright Directive – Conclusion of License Agreements

Article 13 of the Copyright Directive says that Content Sharing Providers shall:

‘obtain an authorization from the rightholders […], for instance by concluding a licensing agreement’.

The complete text of the amended (and agreed upon) Article 13 can be found here.

Subparagraph 2 of Article 13 sets out one main element of the license agreement: ‘acts carried out by users of the services’. This means that the license agreement would need to cover the possible acts of the platform’s users. This would impose a great burden on online platforms to control and manage user-generated content, thus   incentivizing the filtering of user-generated content on these online platforms.

Article 13 Copyright Directive –  Liability, unless….

Subparagraph 4 of Article 13 makes the duty to filter content explicitly clear, because if the rightholder does not grant the required authorization, the Content Sharing Provider is liable for the publication of the copyrighted work.

There is an exception to this strict liability, but only if the Content Sharing Provider complies with the following obligations.

The Content Sharing Provider must demonstrate that:

  1. it made best efforts to obtain an authorization; and
  2. it made best efforts to ensure the unavailability of the specific work; and in any event
  3. it acted expeditiously (upon receiving a notice by the rightholders to remove the specific work).

The most efficient way to ensure the “unavailability of the specific work” under (b) would likely be the filtering of all uploaded works on a platform. Using a filter would enable the practical detection of potentially infringing specific works.

Possible Infringements of Human Rights

While Content Sharing Providers are likely to filter user-generated content to protect themselves, automated content filters often fail to recognize the context and actual content of the specific material (link in Dutch). Such failures would contravene other provisions of  the Copyright Directive, which explicitly allow specific forms of expression that may not be recognized by a content filter.

The Copyright Directive even contains an obligation for the member states to ensure that users in the EU have the freedom for expressions such as:

  • quotation, criticism and review; and
  • use for the purpose of caricature, parody or pastiche

(Article 13 subparagraph 5 Copyright Directive)

This language would seem to require that a filter draw a clear distinction between the content and its specific purpose. This may be an impossible task in practical terms.

A further challenge for adequate filtering is the fact that a copyrighted work, like a video clip, may have multiple authors, each of whom would need to authorize a license to use the work. Consequently, a Content Sharing Provider’s filter system would need to be precise and fully accurate as to attribution, since a mistake regarding a single author’s authorization could lead to a claim.

Lastly, the use of Internet filters poses threats to user privacy. The filtering of content could easily result in the monitoring of users and their personal data. Objective and clear criteria for content filtering is thus required to prevent infringements of the General Data Protection Regulation (GDPR).

All the above will likely lead to the implementation of risk averse policies by online platforms, considering the high threat of many large claims. Such policies are likely to result in strict application of filters in order to block all content that poses a potential risk.

Thus, the risk of using strict upload filters is that ‘safe’ content is filtered out, limiting a free flow of information and freedom of expression. The fact that ‘new platforms’ (i.e., platforms on the market for less than three years and with an annual turnover below EUR 10 million) are exempted from the above obligations (b) and (c) may seem positive for start-ups, but it also means that there is really no way out for the large-scale platforms with millions of European users.

To be continued…

The European Parliament and the Council of Europe are expected to take their final vote in March and April 2019. Subsequently, the member states need to implement the Copyright Directive as national legislation. The future of the Copyright Directive and its potential impact are uncertain, and it remains to be seen if the (members of these) institutions are willing to obstruct the current proposal after years of numerous and lengthy negotiations. To be continued.

For more on copyright law, click here.

Greenberg Traurig Amsterdam Office Advised Amundi Real Estate on its Acquisition of INK Hotel Amsterdam, MGallery by Sofitel

Posted in Announcements, real estate

AMSTERDAM – Feb. 19, 2019 – Global law firm Greenberg Traurig, LLP advised Amundi Real Estate on the acquisition of INK Hotel Amsterdam, located in the heart of Amsterdam.

INK Hotel Amsterdam, MGallery by Sofitel, which Principal purchased in 2012 in a sale-and-leaseback agreement with Accor Hotel, it was sold to Amundi Real Estate’s OPCI fund (a French real estate investment scheme) in December 2018.

To read the full press release, click here.

Greenberg Traurig Amsterdam and ULI Netherlands host the First Annual Netherlands Real Estate Leaders Roundtable

Posted in Events, real estate

AMSTERDAM – Feb. 11, 2019 – Greenberg Traurig LLP’s Amsterdam office hosted the first annual Netherlands Real Estate Leaders Roundtable, in collaboration with Urban Land Institute (ULI) Netherlands. The event, which was held on 25th January 2019 at De Bazel (home of the Amsterdam City Archives and once the headquarters of the Netherlands Trading Company) has been hailed a great success with key decision-makers attending including a wide range of international and local investors, developers, asset managers, and government officials.

Moderated by Eric Rosedale, Greenberg Traurig’s Head of International Real Estate Development, the roundtable provided a special opportunity to share practical information, trends, and ideas about the Dutch real estate investment market.

To read the full press release, click here.

Brexit Brinkmanship

Posted in Brexit

It is now less than two months until 29 March 2019, the date set for the UK’s withdrawal from the EU. At this late stage, the terms of the UK’s withdrawal have still not been settled, and the Brexit issue remains clouded in uncertainty.

As a result of a vote in the UK Parliament 29 January, the UK will now seek to renegotiate one of the terms of the withdrawal agreement agreed in draft with the EU at the end of 2018. This term is the “Irish backstop”, the dual purpose of which is to preserve an open border between Ireland and Northern Ireland post-Brexit and to guarantee the integrity of the EU’s post-Brexit borders. The EU’s initial reaction to the vote has been to indicate that it sees no reason to renegotiate. Without amendment to this term, however, the UK’s withdrawal agreement as a whole is very unlikely to receive the parliamentary approval required for it to become binding on the EU and UK.

Key points in light of these developments:

  • A no-deal Brexit on 29 March is still possible.
  • An extension to the 29 March Brexit date is also still possible.
  • Businesses should prepare for a no-deal Brexit.
  • The withdrawal agreement is not the final EU/UK agreement.

To read the full GT Alert, click here.

Thumbs Up for Privacy Shield Implementation, but Ombudsman Must be Appointed by February 28, 2019

Posted in data protection, English Language, EU, European Union Law, GDPR, privacy

The European Commission published its report on the EU-U.S. Privacy Shield on Dec. 19.

The report shows that the United States “continues to ensure an adequate level of protection” for personal data transferred under the Privacy Shield from the EU to participating companies in the U.S., noting that the steps taken by U.S. authorities to implement the recommendations made by the Commission in last year’s report have “improved the functioning of the framework”. In addition, the report states that the Federal Trade Commission has demonstrated a more proactive approach to enforcement by monitoring the principles of the Privacy Shield, including by issuing subpoenas to request information from participating companies.

The European Commission states, however, that it expects the U.S. government to identify a nominee to fill the Ombudsperson position on a permanent basis by 28 February 2019 at the latest. Currently, there is only an acting Ombudsperson. If the position is not filled by that date, the Commission indicates that it “will consider taking appropriate measures, in accordance with the General Data Protection Regulation.”

To view the press release and full text of the report, click here.

Netherlands Commercial Court Approved by Dutch Senate

Posted in English Language, EU, international litigation, litigation, Netherlands Commercial Court

On 11 December 2018 the Dutch Senate approved the bill for the establishment of the Netherlands Commercial Court (NCC). The NCC is a separate chamber of the District Court of Amsterdam, specializing in complex international commercial disputes. Proceedings before the NCC will be conducted in English, and judgments will be rendered in English. The NCC offers internationally operating companies the opportunity to conduct proceedings in the Netherlands before a specialized Dutch Court in the English language.

With the NCC, the Dutch Judiciary aims to meet the needs of internationally operating companies with cross-border commercial disputes. A change in legislation was needed to allow a Dutch court to render a decision in English. The approval of the bill by the Dutch Senate is the last step in the legislative process, and paves the way for the NCC to open its doors in 2019. The official open date for the NCC is not yet known.

Continue reading.

CJEU Renders Judgment: Taste is Not Protected by Copyright

Posted in Copyright, English Language, EU, Intellectual Property Litigation

In August 2018 we published a blog about a case before the Court of Justice of the European Union (the CJEU) concerning the possibility of copyright on taste of a food product. The special advisor of the CJEU, the Advocate General, advised that taste should not be protected by copyright.

The main reason for this opinion was that taste cannot be objectively identified as a copyright-protected work. To establish whether a work can be protected by copyright, the work should be clear, precise, intelligible, and durable. Taste, according to the Advocate General, does not have such characteristics for the copyright to be established.

The CJEU’s recently rendered final judgment is consistent with the Advocate General’s opinion.

The CJEU first determines whether taste of a food product is eligible for copyright protection under the applicable European copyright directive. The CJEU holds that taste of a food product can be protected by copyright, but only if two cumulative conditions are satisfied.

  1. The subject matter at stake “must be original in the sense that it is the author’s own intellectual creation” (par. 36 of the judgment). This condition aims to exclude subject matter for which protection is requested by one party, but it has been created by another.
  2. “The subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form” (par. 40 of the judgment). This condition seeks to provide clarity to all parties involved as to what precisely is protected, and rules out subjective elements in determining the copyright protection of a work.

In light of the second condition, the CJEU rules that taste cannot be sufficiently identified. According to the CJEU, the taste of a food product is identified based on taste sensations and experiences. These sensations and experiences are subjective and variable, as they depend on multiple factors such as age, food preferences, and consumption habits, as well as on the environment or context in which the product is consumed.

On the basis of these findings the CJEU concludes that the taste of a food product cannot be classified as a protectable work under the relevant European copyright directive.

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