INFORMATION FROM THE CONTRACTING / EXTENSION STATES
1995 patent law
On 1 April 1995 a new Patents Act (Patent Act 95)1 entered into force in the Netherlands. The main changes concern the patent grant procedure, which has been completely restructured by doing away with substantive examination and switching to a registration system instead. Practically unchanged however are the substantive provisions governing patentability and the effects of patents. Patents are now the responsibility of the "Industrial Property Office" (BIE)2 which under the new law supersedes the former Octrooiraad (see Art. 15 Patent Act 95).
The main features of the new law are as follows:
Formalities examination of patent applications (see Art. 24-26, Art. 30 Patent Act 95) remains largely unchanged, but under the Patent Act 95 the Netherlands no longer carries out substantive examination. A patent is granted by making an entry in the patent register (see Art. 33(1), 36(1) Patent Act 95); the invention is not examined for compliance with substantive patentability criteria. Whether a registered patent does in fact meet those criteria will now be decided by the courts if it is contested.
As regards the patent term, applicants in the Netherlands can choose between a short (6-year) patent and the usual 20 years. An applicant opting for the longer period must request a novelty search from the BIE within 13 months from the filing or priority date (see Art. 32(1), 36(1), (5) Patent Act 95). This search presently is carried out for the BIE by the EPO3 (see Art. 34(1) Patent Act 95).
A patent application meeting the formal requirements is published 18 months after the filing or priority date via its entry in the patent register. Earlier registration is possible at the applicant's request (see Art. 31 Patent Act 95). Registration is mentioned in the BIE's official journal (see Art. 20, 21 Patent Act 95).
Patent grant normally occurs on publication of the application, ie its entry in the register (see Art. 33(1) Patent Act 95). However, where a search report is requested (20-year patent), grant cannot take place until two months after notification of the search report to the applicant (see Art. 36(1) Patent Act 95), to give him time to amend the application in the light of that report. This period is four months in case the time period for amending the application has been extended at the applicant's reasoned request (see Art. 28(5) Patent Act 95). The grant entry in the patent register is mentioned in the BIE's official journal (see Art. 20, 21 Patent Act 95).
A nationally granted patent cannot be enforced before the courts without presentation of an official search report (see Art. 70(2) Patent Act 95). If no search report exists (eg for a 6-year patent), the BIE produces it on request (see Art. 37(1) Patent Act 95).
To be valid, a claim or a counterclaim for revocation of a Dutch patent is only admissible if a BIE opinion on the revocation grounds invoked is presented to the court (see Art. 76(1), Art. 84(1) Patent Act 95).
In Article 18 Patent Act 95 the Netherlands avails itself of Article 45(2) PCT, and provides that designation of the Netherlands in an international application is to be regarded as a request for grant of a European patent for the Netherlands.
The old Patent Act continues to apply to applications filed before 1 April 1995, and to any divisional applications or granted patents resulting therefrom. However, for all old applications the period for filing requests for examination expires on 31 March 1996 (see Art. 105 Patent Act 95).
The old Patent Act also continues to apply to European patents published before 1 April 1995 (see Art. 103 Patent Act 95).
National law relating to the EPC
The new law has not greatly changed the law and requirements governing European applications and patents in the Netherlands, so apart from the references to the relevant legal provisions the information given in the 9th edition of the EPO brochure "National law relating to the EPC" still largely holds good. As to the annual fees attention is drawn to the fact that under the new Patent Act annual fees are due only from the 5th patent year onwards (see Art. 61 Patent Act 95). The Patent Act 95 provisions will be included when the brochure is next updated.
1 Rijksoctrooiwet 1995 dated 15 December 1994; Staatsblad 1995, 51.
2 Bureau voor de Industriële Eigendom (BIE), Patentlaan 2, Postbus 5820, 2280 HV Rijswijk.
3 With first applications, by requesting the search early applicants can ensure that the search report is available by the time they need to decide whether to file a subsequent application. If a subsequent European application is filed, the European search fee is refunded in whole or in part.