Summer case law on fogged up solar panels

The sun was shining this summer, but not everywhere for the Korean company Hanwha. First some background information: any holder of a European patent must choose in advance in which countries he wants to enforce the patent. An annual fee is only paid for those countries. No payment is made for the other European countries, but there is no protection there either.  

Hanwha had levied a prejudgment attachment on solar panels of LONGi, which were located (in containers) at a warehouse in Rotterdam. Hanwha claimed that the panels would infringe its European patent, which is valid in several European countries, but not in the Netherlands.

In an earlier judgment, the Court in preliminary relief proceedings already lifted part of the attachment, namely for the panels that had a non-patent country as their destination. The bailiff then turned to the Court in preliminary relief proceedings with some questions about the enforcement, including what to do with panels for which the final destination was not (yet) clear, or which had a delivery instruction from after the attachment had been levied.

The interim relief judge solved it pragmatically: containers that still had no destination at the time of the seizure may still be assigned to a non-patent country. And other panels may be reallocated, also to a non-patent country. However, LONGi must then be able to convince the bailiff of the (new) destination by means of, for example, anonymised commercial invoices and delivery notes, or comparable documents. For solar panels for which the destination of a non-patent country is thus established, the seizure is then lifted.  This is (also in the future) a nice way out for the party that otherwise might have had to have its goods destroyed!

Moïra Truijens