In Denmark, as is probably the case in many other jurisdictions, in IP proceedings a case must be brought against each alleged infringer in that alleged infringer’s local jurisdiction (bailiff’s department of the local city court).

In a recent decision from the Danish High Court (Eastern Division) (case reported in the Danish Legal Gazette UfR 2010.2674Ø), the High Court ruled on the issue of whether it should be possible to join two different cases filed by the same patentee against two separate corporate entities as defendants before the same court.

Defendants’ (shared) counsel argued that only one of the applications should be admitted and the other simply turned down as it was argued that there can be no legal basis for joining two such cases based on PI applications.

After the city court (bailiff’s department) at Elsinore found for the plaintiff, the defendants appealed that decision to the High Court which upheld the ruling of the city court adding that in cases such as the one at hand where the plaintiff was the same in both cases, the defendants were both domiciled in the same local jurisdisction and the facts and legal arguments were the same in both cases, the two cases should be heard together (whereas this would not have been the case had the two parties not been domiciled in the same local jurisdiction.

To my mind, this result is legally correct (and sensible), but it also means that it is still to be assumed under Danish law that had the two defendants been domiciled in different local jurisdictions, for formal reasons, the two cases could not have been heard jointly.

As long as it is up to the local bailiff’s department to hear these cases, we must – regrettably – continue to expect that many of these concurrent cases between different parties but based on the same patent may (and often will) result in very different decisions.

Once again, this underlines that Denmark is in need of a specialised patents court at the PI level also.


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