Van Roeyen kijkt met IE-pet op naar 'Vliegende Hollanders'

Yesterday Dutch radio and television broadcaster AVROTROS broadcasted the first part of the long expected and prestigious series ‘Vliegende Hollanders’ (‘Flying Dutchmen’ or is it ‘Turbulent Skies’?) which has already received big applause in the press. The series covers the apparently difficult relationship between Anthony Fokker, famous Dutch aircraft manufacturer, and Albert Plesman, founder of KLM Dutch Royal Arlines (KLM). Fokker, eager to become KLM’s preferred supplier of aircrafts after the first World War, Plesman striving for KLM to become a major player in commercial international aviation.

There is a special reason for me to look forward to the series. In 1989 Willem Hoyng advised me to write a doctorate about private international law and intellectual property, a field which seemed to be rather underexplored and apparently (on first sight) not a ‘happy marriage’ in that it did not gave rise to a lot of case law.

Although I unfortunately did not succeed (due to various reasons I shall not elaborate about) the subject still intrigues me after so many years. In 1989 the Dutch Supreme Court (Hoge Raad) confirmed in the Interlas/Lincoln case that a Dutch court may grant injunctions ‘vis-à-vis’ infringements of intellectual property rights occurring abroad (of course provided such infringements are present according to the applicable law or laws, for example if intellectual property rights are involved obtained on a country by country basis). Until then such an explicit decision of the Hoge Raad had been non-existent. Seen in retrospective the decision can be also awarded an extraterritorial effect itself: it was a perfect ‘signboard’ to attract a substantive and continuous stream of international intellectual property litigation to the Netherlands. The Netherlands is still considered to be an attractive country for starting such proceedings.

What is not commonly known and seemed to have been erased from intellectual property memory when I started my research (the leading textbooks on intellectual property and private international law at least were silent) was that the Netherlands not always had been that ‘liberal’ towards foreign intellectual property, and it is here that Fokker comes into play. In my search for proper sources (in those days when the internet did not exist, let alone email, research was foremost done in libraries and paper card systems, whilst intellectual property and private international law seemed to be a no go area, because publications and case law seemed to be minimal) I discovered - in the then sublime university library in Cologne - a German publication of the 1960’s in a footnote of which I found a reference to a decision of the District Court Amsterdam dated 25 January 1926 named Ditmar q.q. (q.q. meaning in the capacity of) versus …. Fokker.

 The author of the publication mentioned the case as a totally wrong one and one which - as he wrote - had lead to a lot of international commotion and diplomacy amongst others at the International Chamber of Commerce where the decision gave rise to severe criticism against the Netherlands in general - and the District Court Amsterdam in particular - for it’s ‘non-liberal’ attitude towards foreign intellectual property rights. It made me dig deep in the archives of the International Chamber of Commerce, which was time-demanding and not always successful, because the relevant documents were not available easily (in the meantime that has completely changed).

What was the case? A Franz Schneider, a German engineer, living in Berlin, was the inventor of a device which made it possible to shoot between the propellors of an airplane without (and that was the crux of the invention) hitting them. Mr. Schneider patented the invention in Germany, but being an employee of the Berlin based Luft Verkehrs Gesellschaft GmbH (LVG), his employer became the patent owner after a valid transfer of rights, which was registered at the German patent office.

Fokker, resident in Germany, had already before the first World War, established an aircraft factory at Schwerin in Germany (his company changed names a couple of times, starting as ‘Fokker Aeroplanbau GmbH’, changing to ‘Fokker Flugzeugwerke GmbH’ and ultimately to ‘Schweriner Industrie-Werke GmbH’). In the factory not only Fokker manufactured his airplanes, but LVG as well. Since it is a no brainer to understand that shooting between the propellors of a plane without hitting them is critical for warfare in the air, the LVG patent became an obstacle for Fokker to use a device as invented by Schneider in his (Fokker’s) airplanes, thus Fokker first tried to work around the invention and obtain a patent himself for the work around solution (which was rejected by the German patent office on the basis of the LVG patent). Subsequently Fokker nevertheless installed his work around device in his airplanes which were delivered to the German state in for these days large quantities. The writ of summons - I discovered a copy on the internet which I had not seen before; a piece of it is shown in the picture aside - with which the proceedings in Amsterdam started, states that from 1915 up and until 1918 Fokker delivered 20.450 airplanes in which 38.202 machineguns were installed (some planes had two of them).

Fokker thus became involved in a cascade of patent infringements proceedings started by LVG in Germany, several German courts (Berlin, Leipzig) in first instance and appeal holding that Fokker had infringed the patent and ordering Fokker to pay severe damages (the so called ‘Reichsmilitärfiskus’ intervening in a few of these proceedings to back up Fokker), but some of these decisions were pronounced after Fokker had left German since 1919, without leaving behind any substantial assets in Germany. Since the German state attached the remaining assets for tax debts of Fokker in Germany, LVG missed out and could not enforce the German decision in Germany. Eventually a winding up of LVG became insurmountable, appointing mr. Paul Dittmar, a merchant from Charlottenburg (Germany), as liquidator.

Mr. Dittmar instructed mr. D.W. Stibbe, founder of the offices of ‘Stibbe, Hïkerk en Jurgens’, then located at Rokin 92 in Amsterdam, to start proceedings on the merits before the District Court Amsterdam, claiming foremost damages from Fokker, arguing that Fokker was liable for unlawful acting (from the writ it appears that it was not argued explicitly that Fokker was liable for infringing a German patent). Claimant relied on tort because the German decision(s) could not be (directly) enforced in the Netherlands, an enforcement treaty between German and the Netherlands being absent (one thus could only start the same proceedings a second time, ultimately trying to have the German decision(s) recognized one way or another in the Netherlands by a decision of a Dutch court). The case was introduced at the court on 13 May 1924, but to no avail. With the decision of 25 January 1926 the District Court Amsterdam rejected the claims.

The District Court Amsterdam held as follows (a summary in my own translation with omission of for example the classic ‘O.’ in front of each sentence of the published decision, which was a short for ‘Overwegende’ with which almost all considerations of the courts used to start):

‘that however a claim for patent infringement is special in its nature; after all a patent is dependent of a grant by the Patent Office and regularly payment of patent fees, on the basis of which a monopoly is acquired by virtue of specific statutory provisions which aims by its nature no extra-territorial effect; the patent does not grant a right to the inventor which is accrued to that inventor everywhere, but grants this right only to the inventor who registers his invention at the patent office and pays and maintains paying patent fees after the patent is granted; that protection is granted to the patentee who complies with these requirements; that however this protection cannot go beyond the range of means of exercising powers of the legislator who set the patent (protection); accordingly the Dutch judiciary cannot grant a claim based on patents which have been acquired outside the territory of the Netherlands; thus the action is dismissed as inadmissible.’

How the international intellectual property litigation arena has changed since those days! Although Europe is still struggling with its unitary patent, obtaining patent protection for an invention in as much countries as required has become a reality (although not reserved for each and any inventor due to the involved high costs and litigation risks), whilst free movement of judgements has become more feasible by the creation of enforcement treaties. Moreover practice’ automatism of starting proceedings before a country’s judiciary where an infringement occurs has been eroded due to the acceptance of international jurisdiction rules which force claimants as a rule to start proceedings before the juridiciary of the country which a (co-)defendant is located as well as following a keen jurisdictional strategy (one thinks before acting).

It looks as if the decision of the Amsterdam District Court and the case it decided has boosted a lot of these developments. There is evidence that the archetypes of the current EU regulations on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, which secures the free movement of such judgements throughout the EU to the largest extent and introduced as a general international jurisdiction rule that a defendant can - and as a principle should - be sued before the courts of the state in which the defendant is located, also for infringement of intellectual property rights, came into existence in view of said decision and the Fokker case. These days it seems to be almost impossible that a claim like mr. Dittmar’s would end between the ship and shore as it did in 1926 in Amsterdam. But in those days airplanes still had propellors and one could shoot between them without hitting them.

That being said I pretty much look forward to the series ‘Vliegende Hollanders’ as from tonight and I am curious if this history will be included. I see the bailiff serving the writ on 5 May 1924 at Fokker’s home at Roemer Visscherstraat 47 in Amsterdam, speaking to Miss Fr. Soeher, housemate.

Gino van Roeyen