Ablynx NV & Anor v Vhsquared Ltd & Ors

Exclusive jurisdiction under Article 24(4) of Regulation (EU) 1215/2012 prevails over an agreed jurisdiction clause. The court seised must itself decide whether proceedings are principally or substantially concerned with patent validity. That question requires an overall assessment of the likely issues at trial, based on the available evidence and the balance of probabilities. Patent validity and infringement cannot be severed where they are closely interrelated. If Article 24(4) is not engaged, a stay under Article 31(2) requires a low-threshold prima facie case that a valid exclusive jurisdiction agreement covers the proceedings. Procedural breaches without serious or significant consequences, and without prejudice, do not necessarily justify setting aside service.

The claimants alleged that the defendants had infringed UK designations of European patents concerning camelid antibodies and that post-expiry activities had caused loss. The defendants had not entered an appearance and applied for a declaration that the English courts lacked jurisdiction, a stay in favour of the Brussels courts under an exclusive jurisdiction clause, and other relief.

The court considered the interaction between Article 24(4) and Article 31(2) of Regulation (EU) 1215/2012, whether the proceedings were principally concerned with patent validity, whether a stay or severance was appropriate, the alleged jurisdiction agreement, cause of action estoppel and defects in service.

1. Exclusive jurisdiction. The court had to decide for itself whether Article 24(4) of Regulation (EU) 1215/2012 was engaged before considering Article 31(2). Article 24 jurisdiction is mandatory and has priority over a contractual jurisdiction clause.
2. The question whether proceedings are concerned with patent validity requires an overall assessment of the likely issues at trial. The court must consider the evidence available, the balance of probabilities and the relative significance of the issues, rather than merely the pleadings as they stand. The anticipated invalidity case was likely to involve substantial novelty, inventive-step and possibly insufficiency or added-matter issues. Validity was therefore a real and significant issue.
3. Following JP Morgan Chase Bank NA v Berliner Verkehrsbetriebe (BVG) Anstalt des Öffentlichen Rechts [2010] EWCA Civ 390, the proceedings had to be assessed overall. Patent infringement and validity were so closely related that severance was not an available solution. Article 24(4) was engaged and the English court had exclusive jurisdiction.
4. If Article 24(4) had not applied, the defendants would nevertheless have established a prima facie case that the licence clause conferred exclusive jurisdiction on the Brussels courts and bound the relevant sublicensees. The threshold under Article 31(2) is low, but the clause has no legal force where it purports to exclude Article 24 jurisdiction.
5. The cause of action estoppel argument failed. The present allegation concerned a different product, and the relevant infringement had not been decided or raised with reasonable diligence in the earlier Dutch proceedings. The service breaches were neither serious nor significant under the approach in Denton v T H White Ltd [2014] EWCA Civ 906, and no prejudice or applicable sanction was shown.
6. The application was dismissed.