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Tahir Bodha ranked "leading trademark professional" as he "excels in complex issues"
We are proud to announce that La Gro’s Attorney at law and certified trademark attorney Tahir Bodha has been recognized among the “top trademark professionals” in the WTR 1000 2025. Tahir Bodha is now listed among the top trademark professionals in key jurisdictions around the globe. He has been named a tenacious litigator and has earned this recognition for his excellence in complex issues before the courts. The WTR 1000, a unique guide that identifies the top trademark professionals in key jurisdictions around the globe, notes: “Tenacious litigator Tahir Bodha at La Gro excels in complex issues before EU and Benelux courts, particularly in the healthcare and life sciences, automotive, fashion, retail and ICT sectors.” The WTR 1000 focuses exclusively on trademark practice and has firmly established itself as the definitive ‘go-to’ resource for those seeking world-class legal trademark expertise. If you have any questions or would like to learn more about how Tahir can assist you, don’t hesitate to reach out via [email protected]
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Marleen van den Horst
Attorney at Law
NL District Court holds EP 2653873 of Biogen on DMF (Tecfidera) invalid
On 22 January 2025, the District Court of The Hague handed down its judgement in the final relief proceedings initiated by Biogen against Sandoz, Polpharm, Neuraxpharm and Mylan (collectively referred to as “the Generics”). It ruled that EP 2653873 (“EP 873”) of Biogen on dimethyl fumerate (DMF, marketed as Tecfidera®), is invalid. EP873 protects the use of an orally administered pharmaceutical composition containing the active ingredient DMF for treating multiple sclerosis (MS) with an effective daily dose of 480 mg DMF. DMF has been known since the 1990s as a drug for treating psoriasis. Inventive step Shortly after the Generics listed their generic 480 mg DMF products in the G-Standard (pricelist) for October 2022 and after health insurers designated some of these products as preferential in NL, Biogen sued  the Generics for infringement of EP 873. The Generics counterclaimed for revocation of Biogen’s patent, inter alia arguing that EP 837 lacked inventive step or sufficiency of disclosure (G2/21). The Generics relied on a clinical study that demonstrated the efficacy of 720 mg DMF per day and the potential for a lower dose to also be effective for the treatment of MS. The clinical study became part of the prior art through two pre-priority date presentations called ‘Kappos I’ and ‘Kappos II’. In the proceedings, both Biogen and the Generics acknowledge that Kappos I and II are full prior art and disclose the use of DMF as an effective drug for the treatment of MS. Starting from Kappos I or II, the Court found that the only difference between Kappos I or II and EP 837 relates to the 480 mg per day dosage set forth in claim 1. During the oral hearing it was established that both parties found that the administration of DMF to treat MS at a dose of 480 mg per day is as effective as administration of 720 mg per day. Therefore, the Court considered that the objective technical problem that the patent tries to resolve is to find an alternative treatment for MS that is as effective as the state of the art, namely the administration of DMF of a dose of 720 mg per day. Biogen argued that the objective problem was to find an improvement in the oral treatment of MS, but the Court rejected this argument and held that – unlike the apixaban case – the patent application (parent patent) of EP 837 did not describe an improved treatment. In addition, the Court found that the purpose of the patent application was not to find the best dose of DMF, but to screen for potentially MS-active substances similar to DMF. Agreeing with the Generics, the Court is of the opinion (5.39) that the skilled person, starting from Kappos I and/or Kappos II, and the general common knowledge,  knows that the efficacy (and therefore the effectiveness) of DMF is dose-dependent and that lower doses are also effective for the treatment of psoriasis. The skilled person would therefore have a reasonable expectation of success that this problem for an alternative dose could be solved in an obvious way by testing lower doses of DMF. Contrary to Biogen’s argument, the skilled person would then carry out those tests. In this way, with routine testing and thus without inventive effort, the skilled person would find that a dose of 480 mg per day has a therapeutic effect. Therefore, claim 1 of EP 837 is obvious. The two auxiliary requests filed by Biogen are also dismissed by the Court. Sufficiency of disclosure The Court also addresses the ‘squeeze’ that the Generics identified, namely that in case EP 873 would be found inventive (quod non), it lacks sufficiency of disclosure and is (also) invalid for that reason. The Court held that the patent or application must sufficiently disclose the subject matter allowing the skilled person to apply the invention over the whole range claimed by the patent without undue burden. Second medical use claims bring about that it must be tested whether the therapeutic effect of the composition and dosage regimen for the claimed medical indication (in this case MS) is disclosed in the application/patent or, in the absence thereof, is credible. In relation to G2/21, the Court states that if the desired technical effect is part of the claim, but the patent does not prove or at least make plausible that this technical effect is achieved by the teachings of the patent, nor does the person skilled in the art assumes this on the basis of the common general knowledge or the cited literature, then there is insufficient disclosure. The Court found that that the application says nothing about the efficacy of the claimed dosage of DMF in treating MS. Since the Court does not consider any experimental data other than Kappos I and II, EP 873 is lacks sufficiency of disclosure. Parallel proceedings  The decision handed down by the District Court of The Hague is the first decision in final relief proceedings to hold (the NL part of) EP 873 invalid. To date, only Sweden has ruled in final relief proceedings on (the validity of) EP 873. The Swedish Court found EP 873 valid and imposed an injunction on the generic companies. Earlier Biogen commenced several PI proceedings in various European countries. In the Czech Republic, Denmark, Latvia, Slovakia, Estonia, Ireland and Sweden, PI’s were granted. In contrast, in Austria, Belgium, Portugal, Slovenia, Italy, France, Spain, Estonia, Germany, Norway and Hungary, PI’s were rejected because the patent was found invalid on a preliminary basis. Conclusion It remains to be seen if the NL judgement on the invalidity of EP 873 is going to be followed by other European jurisdictions.
LGGA – Lennart Hoeksema
Lennart Hoeksema
Attorney at Law
WAMCA: victory for foundation in Essure case
On 8 January 2025, the District Court of Midden-Nederland gave judgment in the ‘Essure case’ (ECLI:NL:RBMNE:2025:10). Drug manufacturer Bayer marketed a permanent sterilisation method for women called ‘Essure’, which had to be implanted on the fallopian tubes. The Essure Claims Foundation (‘Foundation’) brought a mass tort action against Bayer. The Foundation claimed that many women became seriously ill from this sterilisation implant. In its judgment, the court ruled on a number of formal points regarding, among other things, the applicability of the WAMCA and the admissibility of the Foundation in the proceedings. The court ruled in favour of the Foundation on all points. Below, we highlight some noteworthy points of the judgment. Temporal application of the WAMCA: no cut-off The WAMCA applies to collective actions that (i) are brought after the WAMCA came into force on 1 January 2020 and (ii) relate to events that took place on or after 15 November 2016. Bayer believes there should be a cut-off in the claims of the Foundation. Bayer argues that with regard to implants placed before 15 November 2016, the old statutory regime (WCAM) should be applied; only with regard to implants placed on or after 15 November 2016 should the WAMCA be applied. The court is of another opinion. The court considers that there is a series of events, as the women have in common that they all had the Essure implanted, but at a different point in time. According to the court, this series of events consists of the same, repetitive event that caused the alleged harm to several individual women who belong to the circle of persons whose interests the collective claim seeks to protect. This series of events did not end until after 15 November 2016. Therefore, the court concluded that the WAMCA applies to all of the Foundation’s claims. The claims for material and non-material damage can be bundled An foundation who can start a mass-litigation case under the WAMCA can only bring an action if it seeks to protect similar interests of the persons involved. This similarity requirement is met if these interests lend themselves to bundling. As a result, the special circumstances of the individual parties need not be considered in the proceedings. In addition to material damages, the Foundation also claims immaterial damages for the women who had Essure surgically removed. The Foundation divided the women into 17 categories and claimed a lump sum of damages for each category. Bayer takes the view that the claims cannot be bundled in this case, as according to Bayer, immaterial damages depend on individual facts and circumstances. In doing so, Bayer also relies on the Supreme Court’s ruling on earthquake damage in Groningen. In this judgment, the Supreme Court ruled that immaterial damage due to impairment of the person cannot be determined on a flat-rate basis, as this is not compatible with the highly personal nature of such damage. Again, the court is of another opinion. The court considers that, unlike in the aforementioned Supreme Court judgment, in the present case, immaterial damages are not claimed for personal impairment. In the present case, immaterial damages are claimed because the women suffered personal injury. As a result, according to the court, immaterial damages are even more logical than for an impairment in person. According to the court, it is not necessary that the women also suffered mental injury. The court concludes by considering that it is therefore possible that it may find that the immaterial damages suffered by the women are at least a certain (lump sum) amount. The court concludes that the Foundation’s claim for compensation for both material and immaterial damages are bundleable. Thus, the Foundation is admissible in all its claims, including those relating to the immaterial damages. Litigation funder’s fee of 28.75% is not unreasonable In the context of the admissibility of the Foundation, it must be assessed whether or not the litigation funder’s fee is prima facie unreasonable. The amount of the litigation funder’s fee should not be such as to disadvantage the women or provide an unacceptable incentive for the litigation funder to push for an adverse outcome for the women. It has been agreed with the litigation funder that it will receive 25% of the potential damages. In addition, it has been agreed that the litigation funder may charge all its incurred costs up to a maximum of 5% on the potential damages. This therefore means that a minimum of (95% minus 25% =) 71.25% of the damages will accrue to the women; the litigation funder can therefore potentially receive 28.75% of the damages. Dutch case law states that a range of 10 to 25% can be considered the maximum fee for a litigation funder. The court finds that the Foundation has sufficiently substantiated why a fee of more than 25% is reasonable. The Foundation has substantiated that it intends to recover the costs of the proceedings from Bayer by means of an actual litigation cost order or an equal agreement in a settlement. The Foundation has further argued that it is still uncertain what costs will be eligible for reimbursement through a (litigation) order or settlement. The amount of costs to be incurred is also still uncertain. In view of this, the court concludes that the Foundation has sufficiently substantiated that the agreed fee is not unreasonably high. Therefore, this does not pose an issue for the admissibility of the Foundation. Conclusion The Foundation’s victory shows that both the applicability of the WAMCA and the admissibility of foundations that are litigating under the WAMCA can be applied practically. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
The employment law implications of downloading (sensitive) company information 
Most employment contracts include a confidentiality clause. Under such a clause, the employee is obliged to keep sensitive company information confidential. It may happen that an employee downloads confidential and sensitive data, for example on his private laptop or phone. This could have major consequences for the employee.  Case Law  In a recent case before the District Court of Gelderland, both a confidentiality clause and a penalty clause had been agreed upon in the employee’s employment contract. The employer had informed the employee that he was dissatisfied with the employee’s performance and intended to terminate the employment relationship. A few days after the employer presented the employee with a settlement agreement, the employer received a security alert from Microsoft due to suspicious activity on the employee’s account.   When questioning the employee regarding the suspicious activities, it appeared that the employee had downloaded company files on his private laptop. The employee feared being excluded from access to his work environment and therefore could not defend himself against the alleged underperformance at work. However, the employee had downloaded a significant amount of files including reports from the company physician and performance of other staff members subordinate to employee.  The judge ruled that downloading all of this company-sensitive information was culpable. The employee thereby seriously damaged the employer’s trust. However, the high bar of serious culpability was not met because, in the judge’s opinion, the employee did not act intentionally to harm the employer.   In a recent similar case before the Court of Appeal in The Hague, an employee had also downloaded confidential and sensitive company information for the purpose of his defense at the the Netherlands Employees Insurance Agency (UWV). In this case it was not established whether the employee had only downloaded information which he could use for the procedure or also other (confidential) documents. The immediate dismissal by the employer was upheld.  Practical tips for employers  As an employer, it is wise to check whether an employee has downloaded information in the context of a dismissal case. Because the verification should not violate the General data protection regulation (AVG), it is good to have a policy in place when certain information may be checked. Sending confidential information can constitute  a violation of the confidentiality clause. If the employment contract includes a penalty clause for this circumstance, the employer can impose a fine on the employee.  It is wise to design the confidentiality clause so that even sending company information to employees’ own accounts counts as a violation.  Can La Gro be of assistance?   Do you have a question about confidentiality and protecting company information? Feel free to contact Gerard Zuidgeest, Rose Horstman or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Mediation for employee calling in sick due to conflict
It is often assumed that Dutch employment law requires an employer to initiate a mediation process before an employment contract can be terminated  on the grounds of irreconcilable differences in the employment relationship (the g-ground).  Such a requirement is based on  case law, where mediation is often deemed necessary as an effort that can be expected of an employer in order to restore the relationship. But is mediation always mandatory, or can the employer in some cases make a plausible case that there is no longer any point in initiating mediation?  The Court of Appeal of Den Bosch recently ruled that in that specific case an attempt at mediation was not  necessary. The case in question involved a small organisation with only six employees. The employee had been hired as a driver, with the prospect of becoming a shareholder. However, it soon became apparent that this partnership would not succeed. The employee had scolded his supervisor stating he was a  “bad manager” and the employee had been working under the influence of drugs. The employee claimed that his behavior stemmed from a lack of recognition, while the employer proposed a personal improvement plan. The employee refused to cooperate with this plan. He had also called in sick; the company doctor recommended mediation. Eventually, the employer proposed a settlement agreement to end the employment agreement, but an agreement could  not be reached.   The employer petitioned the subdistrict court to terminate  the employment contract because of a disrupted working relationship. The employee argued that the elements to terminate the employment agreement due to irreconcilable differences (g-ground) was not sufficient because no mediation had taken place, despite the company doctor’s advice.  The appellate court ruled that mediation was  not mandatory in this situation. The appellate court ruled that the relationship between the parties had hardened to such an extent that mediation had no chance of success. The size of the organisation also played a role: with only six employees, re-employment or avoidance of contact between the parties was impossible. The court emphasized that an employer is not obliged to start a mediation process “against his better judgment,” even if the company doctor advises it. According to the court, the company doctor’s advice in this case was a standard response, without knowledge of the actual gravity of the situation.  Practical implications   This ruling seems to be an exception to the general line in case law, where mediation is often seen as necessary. Especially if the company doctor advises mediation, since an employer will want to avoid being blamed for ignoring the advice of the company doctor in the context of illness.  At the same time, this case is quite common in  practice. In many cases it is quite clear that an employment relationship has been disrupted to such an extent that recovery seems out of the question. This ruling  may well set a precedent for smaller employers. However, it remains important to consider whether mediation can be useful in a particular case. If an employer skips mediation too easily, he runs the risk of a termination request being denied and having to (temporarily) retain the employee in question or to pay a high termination fee.  Do not come to the conclusion too quickly that no mediation needs to take place.    Practical tips for employers  Evaluate the situation carefully: seriously consider whether mediation really does or doesn’t have  a chance of success; it should not be ruled out too quickly; Document well: if mediation is not an option, make sure you can justify and corroborate this, such as with correspondence or statements about the seriousness of the situation.  Smaller organisations:  an additional argument for skipping mediation may be found in the fact that contact between severing quarreling colleagues cannot be prevented due to the size of the organization. In larger organizations, however, transfer will often be a possible outcome and thus mediation will more often be an obligation to which the employer must cooperate.  Company doctor’s advice: while the advice of a company doctor to start mediation is important, an employer does not always have to blindly go along with it if it is clear that the prospects of reconciliation are highly unlikely.  How can La Gro be of assistance?  Feel free to contact Gerard Zuidgeest, Jaap Harrijvan or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Dismissal and compensation for performing ancillary activities during illness
Article 7:653a of the Civil Code dictates that an employer may not prohibit or restrict an employee from performing ancillary activities  unless there is an objective reason for doing so. How does this clause work in practice, specifically when an employee is sick?    The effect of the ancillary activities clause  Ancillary activities are activities that an employee performs outside of his work. In principle, ancillary activities are permitted. In practice, the clause often includes the condition that an employee may only perform ancillary activities with the prior consent of the employer.  The employer may only refuse such consent if he has an objective justification. Examples of such an objective justification included in the law are:  the health and safety of the employee;  the protection of confidentiality of company information;  the integrity of public services;  the avoidance of conflicts of interest; and  the violation of a legal requirement.   The employer does not have to include the objective reason in the employment contract but must provide it when invoking the agreed-upon clause.  Performing ancillary activities during illness  Suppose an employee is sick and the employer finds out that this employee is performing ancillary activities. How does a judge rule in such a situation? In a case before the District Court of The Hague, an employee of the municipality of Amsterdam reports in sick. This employee is receiving  benefits due to occupational disability of 80-100%.   In July 2022, this employee reports in sick for her reintegration work due to a corona infection. The employer submits a termination request to the Netherlands Employees Insurance Agency (UWV) due to  long-term disability, but it is rejected because recovery is considered possible within 26 weeks. In October 2023, the employer again applies for a dismissal permit, which is then rejected because it turns out that the employee has been performing similar work at the Municipality of Rotterdam. An integrity investigation follows which shows that the employee has been working 24 hours a week at the Municipality of Rotterdam , which she did not report as stated in the absence protocol and code of conduct of the Municipality of Amsterdam. The Subdistrict Court ruled that the employee had violated Section 8 of the Civil Servants Act, which constitutes a breach of contract. The employee should have reported her intention to enter the service of the Municipality of Rotterdam. The employee should also explicitly have  asked permission to do so, and should have reported this to the company doctor. What was reported by the company doctor cannot be interpreted in any other way than that there was (a degree of) intent on the part of the employee to mislead the company doctor and therefore also the municipality. The overpaid wages must be repaid by the employee (Section 7:629 (5) of the Dutch Civil Code). The employment contract is terminated, without awarding the transitional compensation.  Practical tips for employers  Although the inclusion an ancillary activities clause employee may be important, an employer can also take steps in the situation where no clause is agreed upon but the employee does perform ancillary activities  during illness. The employer has several options depending on the situation. The employer may have grounds to  dismiss the employee either by instant dismissal or through a termination  procedure in court. In the latter case, the employer can choose to terminate  the employment contract for breach of contract. The options are highly intertwined with the circumstances of the case; in some cases, the employer has to tolerate that the sick employee also performs work elsewhere.  Contact Would you like to know more about ancillary activities? Feel free to contact Gerard Zuidgeest, Rose Horstman or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.
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