Patent Law

Patent law has a clear purpose: to encourage innovation and inventions. Creativity, research and investment are rewarded by granting you, as the inventor, a monopoly for a relatively limited period. This gives you the opportunity to recoup your investment and benefit from the proceeds of your invention without another party copying it. Patent law is therefore largely concerned with encouraging progress. And because patent specifications are published, others can build on earlier inventions once the patent has expired.

Applying for a patent?

A patent application can first of all be filed in the Netherlands under the Dutch Patents Act 1995 (Rijksoctrooiwet 1995). The application is not substantively examined, but is processed administratively only.

The position is different for a European application filed with the European Patent Office (EPO). In that procedure, the application is substantively examined and the EPO decides whether to grant the patent. The basic principle is that patent protection must be obtained separately for each country.

When is something eligible for patent protection?

Four requirements apply in order to obtain a patent:

It must be an invention. An invention may be a component of a machine, but it may also be a method for manufacturing something, for example. Finally, it may also concern a substance, such as a detergent or a medicinal product. The law provides that certain subject matter is not regarded as an invention, including discoveries, scientific theories, mathematical methods, schemes for doing business or carrying out scientific activity, designs, computer programs and presentations of information. Many biological matters, such as parts of the human body and plant and animal varieties, are also not eligible for patent protection.
The invention must be new. The novelty requirement applies worldwide. There must not already be an earlier patent anywhere in the world. Nor may the invention already have been made publicly known anywhere in the world, for example through use or a description. The invention must not already form part of the prior art.
The invention must involve an inventive step. The fact that an invention is new does not in itself mean that it is patentable. The new invention must also be inventive. This implies that there must be a new approach which is, in itself, almost surprising.
The invention must be susceptible of industrial application. If an invention satisfies the above criteria, it must also be capable of being applied in practice.

Would you like to know whether your invention can be protected by a patent? Ask a patent lawyer for advice.

Patent procedure in the Netherlands

The patent procedure in the Netherlands is an administrative procedure. The Netherlands Patent Office therefore does not substantively examine patent applications, but assesses them only against administrative requirements. Substantive assessment of patents is left to the courts.

Novelty search

A novelty search is, however, carried out. This is important first of all because the search report is published and provides third parties with information about the novelty of the invention. In addition, the search report may be required if proceedings are later brought before the courts.

Procedure for a European patent

Filing the application

The procedure for applying for a European patent begins with filing the application, at which point the fee (the cost of the patent application) must also be paid. All formal requirements are then examined and, if they are met, the application is published.

Search

At this stage, the European Patent Office (EPO) examines the invention and issues a European search report, referring where appropriate to relevant prior-art documents.

In the subsequent period, you as the applicant can decide whether to proceed with the patent application. If you proceed, the search report is published.

Substantive examination

At this stage, the EPO assesses whether the application meets the substantive requirements for grant. It examines the application in light of the prior art. The EPO then communicates with the applicant about possible ways of addressing issues identified in the application. After giving the applicant an opportunity to respond, the EPO decides whether the patent is to be granted.

Opposition

Once the grant of the patent has been published, anyone has nine months in which to challenge the grant by filing a notice of opposition with the EPO.

Like copyright, a patent is an exclusive right. As the holder of the right, you can prevent others from practising the patented invention. At the same time, it gives you the opportunity to exploit your patent on the basis of a temporary monopoly.

Patent protection

In principle, the scope of protection conferred by a patent is determined by the claims in the patent specification. Because the claims are expressed in words, however, different interpretations may be possible, making the scope of a patent open to interpretation.

Patent case law has developed principles governing the interpretation of patent claims. The claims, description and drawings in the patent specification are relevant to determining the essence and scope of the patented invention.

Points to consider in relation to a patent include:

what exactly was the inventive concept underlying the inventor’s invention?;
in principle, ambiguities in the description of the invention are at the patent proprietor’s risk;
a court may find that an unclear term is not material to defining the essence of the patent. The term may then be disregarded when the court interprets the patent;
where a patent can be regarded as highly pioneering, the protection it provides may often be interpreted more broadly because of its pioneering nature.

Patent infringement: what remedies can you seek?

If your patent is infringed, you can seek the following remedies against the infringer:

you can seek an injunction prohibiting use of the infringing technology;
if someone is found to have knowingly infringed your patent, you can claim damages (damages for patent infringement);
you can seek an account of the profits made from the infringement;
you can seek destruction of the infringing goods.

Selling or licensing your patent

You can license your patent, or the use of it, to another party. You do this by entering into a licence agreement and having the agreement recorded with the Netherlands Patent Office or the European Patent Office. Once the agreement has been recorded, third parties are also put on notice of its existence.

The basic principle when granting a licence to use your patent is that the licence covers all acts relating to the patent and applies for the duration of the patent. If you wish to depart from this, you must expressly provide for this in the patent licence. However, the patent licensee does not have an independent right to take action against copying or infringement of your patent. As the patent proprietor, you can nevertheless confer this power on the licensee. This must then be included in the licence agreement.

How long does a patent last?

The normal term of a patent is 20 years, calculated from the date on which the patent application was filed. In practice, however, most patents have a shorter effective life.

The period of protection of a patent can be extended. For a patent relating to a medicinal product, an extension of up to five years may be applied for.

Once the term of the patent expires, the patent ceases to have effect. It should also be borne in mind that maintaining a patent generally becomes more expensive as it gets older. Many patents therefore lapse before the standard term expires because maintaining them becomes too costly. In addition, you can surrender your patent, or a court may revoke it.