Just because you hold a patent on a Dutch zwieback does not mean you have to grant licences

Tempels holds a patent on an indent, or nick, in zwiebacks, so that they can be removed from their tube-like packaging without breaking. Tempels signed exclusive licensing contracts with two producers (Bolletje and Van der Meulen). Haust also makes zwiebacks for the Dutch private label segment, but it does not have a licence.

Haust asked the court to force Tempels to give it a licence: Tempels, it alleged, was abusing his dominant position, which is detrimental to Haust. But the court dismissed the claims. According to settled case law (in the field of competition law), holding a patent does not in itself imply a dominant position. And even if a company does have a dominant position, if it uses that patent right, it does not automatically constitute abuse.

Haust had another argument: the use of the notch in the zwieback, it said, was essential for a company to penetrate the relevant zwieback market or to operate there. But the court did not agree on this point either. There are enough practicable and adequate other ways to remove zwiebacks from their packaging without breaking them. On the private label market, where Haust is active, no less than 40% of the zwiebacks sold have no such notch. And there is no reason to assume that an extra licence would yield an appreciable benefit for consumers. For the time being, Haust will not be making zwiebacks with notches.

Moïra Truijens, patent lawyer

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