Patents of Invention
Applicable for patent applications filed before April 1, 1995:
– Patents Act for the Kingdom of November 7, 1910, last amended May 1, 2003.
– Patent Rules of 1921, last amended 1993.
Note: on July 6, 2004, the Patents Act 1910 officially lapsed. All pending applications filed under the Patents Act 1910 have been dealt with. Validity issues will only be dealt with by the court.
Applicable for patent applications filed after April 1, 1995:
– Patents Act for the Kingdom of April 1, 1995, last amended in 2017, taking effect as of March 1, 2017.
– Patent Rules of 1995.
Membership in International Conventions
– Paris Convention for the Protection of Industrial Property (1883), Stockholm Act of 1967.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille) (1961), since October 8, 1965.
– Agreement for the mutual safeguarding of secrecy of inventions relating to defense and for which applications for patents have been made (1960).
– Convention on the Unification of certain points of Substantive Law on Patents for Inventions (1963) (Convention of Strasbourg).
– Convention Establishing the World Intellectual Property Organization (WIPO) (1967), since January 9, 1975.
– Strasbourg Agreement Concerning the International Patent Classification (1971), since October 7, 1975.
– Convention on the Grant of European Patents (European Patent Convention) (1973), since October 7, 1977.
– Patent Cooperation Treaty (PCT) (1970), since July 10, 1979.
– Convention for the European Patent for the Common Market (Community Patent Convention) (1975) (not ratified).
– Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (1977), since July 2, 1987.
– WTO’s TRIPS Agreement (1994), since January 1, 1995.
– Patent Law Treaty, since December 27, 2010.
Introduction: on April 1, 1995, a new Patents Act came into force, introducing a system of registration. The patent application will not be examined for compliance with substantive requirements, even though these requirements remain in force.
Amended Patents Act 1995: on June 5, 2008, the amended Dutch Patents Act 1995 came into force. The main changes are that the option to obtain a six-year patent is abolished; voluntary limitation after grant has retroactive effect; filing of specification in English is allowed, claims in Dutch are still required. Following the entry into force of the London Agreement on Translations on May 1, 2008, validation of European patents can be effected by filing a specification in English and a translation of the claims in Dutch. On April 1, 2010, further amendments to the Patent Act 1995 came into force. The most important changes are that re-establishment is applicable for the twelve-month period for claiming a right of priority; the presence of a claim is no longer required for obtaining a filing date; and filing by reference is now possible. On July 1, 2014, an amendment relating to a limited breeders’ exemption came into force. On February 1, 2019, the pharmacist's exemption was introduced in Art. 53 (3) of the Dutch Patents Act. Pharmacists are, under certain conditions, allowed to prepare medicinal products that are covered by a patent.
Applicant: inventor or his assignee, who may be any individual, firm, company or corporation as well as the State. The inventor must be mentioned as such.
Non-residents: can be represented by a registered patent agent; however, electing domicile at the office of a patent agent is not mandatory.
Types of patents: (a) national patents of invention; (b) European patents valid in the Netherlands.
Process patents: cover also products directly obtained by the patented process.
Novelty: an invention shall be considered novel if it does not form part of the state of the art. This requires that the invention has not been accessible anywhere to the public by description or in any other manner prior to the filing (or priority) date. Also the invention is not to be disclosed in: (a) a previously filed Dutch patent application laid open to public inspection on or after the filing (or priority) date; (b) a previously filed international patent application filed under the PCT, designating Europe, published on or after the filing (or priority) date; or (c) a previously filed European patent application laid open to public inspection on or after the filing (or priority) date. In general, this means that the same requirements apply as according to the EPC, except that for a Dutch patent application also previously filed national (i.e. Dutch) patent applications can be a prior right for a subsequent filed national application.
Inventiveness: not obvious to a person skilled in the art in the light of what was accessible anywhere to the public by description or in any other manner prior to the filing (or priority) date.
Unity of invention: each patent application must relate to one invention only or to a group of inventions linked by a single general inventive concept. Patents pertain only to the invention or such a group of inventions first mentioned in the claims.
Exceptions to protection: (1) contrary to law, public order or morality; (2) inventions not procuring some result in any field of industry whatsoever, including agriculture.
Priority: priority must be claimed within sixteen months from the priority date. Partial and multiple priorities are allowed. Priority may be based upon an earlier foreign or Dutch patent application.
Territory covered: a (national) Dutch patent is effective on the territory of the Kingdom, i.e. the Netherlands and the BES Islands. According to the Patents Act 1995, a national patent is also effective in Curaçao and Sint Maarten. A national Dutch patent is not effective in Aruba. As far as the exploration or exploitation of minerals is concerned, a Dutch national patent is also effective on the parts of the continental shelf contiguous to the said countries. At the time of writing, a European patent in so far as granted for the Netherlands and validated after April 1, 2007, is also effective in the BES Islands, Curaçao and Sint Maarten (but not Aruba).
Filing requirements for an application (to be sent to resident agent):
1. Specification in English or Dutch, however, with claims in Dutch (note: any language is allowed for according a date of filing);
2. Drawings (1 set, paper prints), size DIN A4 (210 x 297 mm);
3. If a Convention priority is to be claimed (multiple and partial priorities are allowed); statement of the name of the Convention country in which the first application for the same invention was filed and the date and number thereof;
4. Certified copy of the Convention document(s); if not in Dutch, English, French or German, to be accompanied by a sworn and legalized translation in one of these languages;
5. Assignment of Convention priority rights, when assignee files the application (form will be sent by local agent).
Electronic filing: a patent application and accompanying documents can be filed electronically.
Filing of certificate of priority: see above; the Convention document must be filed at the latest within sixteen months from the Convention priority date.
Examination: only formal, according to the Patents Act 1995. If the formal requirements are not met, the Office demands the redressing of the shortcomings within three months.
Publication: the application is entered in the Patent Register, and is laid open to public inspection, as soon as possible after eighteen months after the filing date. For an earlier entry in the Register, a request in writing has to be filed. In practice, it is possible to have the application laid open to the public within some weeks from the actual filing date.
Granting: the Office will automatically grant a patent as soon as the application has entered the Patent Register. The granting will take place no sooner than two months after the dispatch of the notification concerning the result of the search.
Amendments of application: before the granting, the applicant can amend the application as filed.
Unity: an application should include one single invention only; in case of non-unity the patent pertains only to the invention first mentioned in the claims.
Divisional applications: may be filed until the date of entry of the application in the Patent Register, or two or four months after the Dutch Patent Office has sent the search results.
Beginning of protection: from filing date.
Duration: twenty years from the filing date. In order to obtain a patent, it is mandatory to request a novelty search report within thirteen months from the filing date. It is possible to opt for a “national type” of novelty search that is more affordable than an International type search report.
Opposition: not provided for in the Patents Act 1995. However, it is possible for anyone to ask the Office to provide a substantial advice, concerning the validity of the granted patent.
Annuities: after grant annuities are payable each year, starting four years after the filing date, at the latest on the last day of the month of filing. When the grant takes place in the month of filing, the first annuity is payable on the last day of the month immediately following.
Annuity grace period: six months with surcharge.
Modification of Protection after Granting
Validation of invalid patents: not possible.
Amendments after grant: the patent proprietor is allowed to, wholly or in part, surrender a granted patent.
Supplementary Protection Certificates (SPCs): can be applied for under the Dutch Patent Act of 1995 as ruled by Regulations (EEC) No. 1768/92 and No. 1610/96 of the Council of the European Communities.
Paediatric extension: available.
Nullification: may be requested at any time during the life of the patent. In order to start legal proceedings for the nullification of a patent, the requester first has to request the Office to provide him with an advice concerning the applicability of the grounds of nullity, and he must file this advice with the court.
Working – compulsory licenses: may be granted (1) if required by public interest; (2) when after three years from the date of grant, neither the patentee nor any licensee has in operation within the Kingdom, in one of the member States of the European Economic Area, or as far as the exploration or exploitation of minerals is concerned on the parts of the continental shelf contiguous to the Netherlands, Curaçao or Sint Maarten, an industrial establishment, where the patented product is made or the patented process is used on a sufficient scale, unless valid reasons exist for the absence of such an establishment; (3) if necessary for the working of a dependent patent; (4) on behalf of the State for reasons of national defense; (5) in virtue of the Treaty establishing the European Community for Atomic Energy (EURATOM).
Infringement: in the case of infringement, damages can only be claimed in respect of acts committed knowingly, which is in any case considered to be so after a period of thirty days from the date on which a writ of warning was served upon the infringer. The patentee may claim either compensation of his own damages or the profit made by the infringer. In order to be admissible in legal proceedings, submitting a novelty search report is mandatory.
Penalty for deliberate infringement: anyone deliberately infringing the rights of a patent owner may be punished with imprisonment of no more than six months or a fine of the fourth category. Anyone performing infringement as a profession is punishable with imprisonment of no more than four years, or a fine of the fifth category.
Assignment: patent applications as well as patents may be assigned; the deed may be executed privately; no legislation is required; the assignor must declare that he transfers and the assignee that he accepts the transfer.
Right of prior user: any third party who was already using or preparing to use an invention within the Kingdom, or as far as the exploration or exploitation of minerals is concerned on the parts of the continental shelf contiguous to the Netherlands, Curaçao or Sint Maarten, prior to the filing (or priority) date, has a personal right to continue such use after the grant of the patent, unless he derived his invention from the inventor. Prior user’s rights can only be transferred together with the business.
Expropriation: expropriation of a patent or a patent application in the interest of the armed forces or of the public is possible, but has never happened so far.
European Patents (National Phase) and PCT Applications
European patents in so far as granted for the Netherlands:
Effect: a European patent has the same effect as a Dutch patent. Domicile: if the patentee is not a resident of the Netherlands, he is obliged to elect domicile in the Netherlands. Translation: the Dutch government has ratified the London Agreement on the application of Art. 65 of the Convention on the grant of European patents. Within three months from the date of the publication of the grant of a European patent, a Dutch translation of the claims as granted has to be filed. The text of the European patent specification must be filed either in Dutch or in English. Renewal fees: if the first annual fee has to be paid within a period of two months from the date of grant, the fee may be paid without a surcharge on the last day of the month in which the term expires. However, paying later is allowed until six months after the due date. In that case, an increase of 50% of the then current renewal fee is payable.
International patent applications (PCT) in which the Netherlands is designated:
Since April 1, 1995, when the Netherlands is designated or elected in an international patent application, the application is considered as an application for a European patent designating the Netherlands according to the provisions of the European Patent Convention. Time limit for entering the regional phase under Chapters I and II: 31 months.