The Intellectual Property Review - Edition 7

By: Wim Maas and Maarten Rijks

I FORMS OF INTELLECTUAL PROPERTY PROTECTION

i Overview

In terms of intellectual property law and litigation, the Netherlands ranks among the most important jurisdictions in Europe. IP cases in the Netherlands are handled by several courts that can boast extensive experience in that respect. The Hague Court, in particular, has exclusive jurisdiction in patent cases and other specific types of IP litigation, employing specialist judges to assess such cases. Rulings handed down in the Netherlands consequently carry significant weight in the rest of Europe as well.

In terms of entering the European market, the Netherlands is an essential starting point. Enforcing IP rights in the Netherlands, therefore, can prove instrumental in the protection against infringement in Europe. IP litigation in the Netherlands is efficient in terms of both time and costs; hence it is a favoured venue for IP litigation. IP proceedings in the Netherlands primarily concern patents, trademarks, designs and copyright. These will be discussed in greater detail, below.

ii Patents

There are several ways to obtain patent protection in the Netherlands, of which filing a patent application with the Dutch Patent Office is the first. Second, the protection of patents in the Netherlands can ensue from a European application before the European Patent Office (EPO). In addition, the Netherlands is a member of the Patent Cooperation Treaty (PCT). Whether it be via a national application or an international treaty (e.g., European Patent Convention (EPC), PCT), a patent that is issued for the region of the Netherlands will be governed by the Dutch Patents Act (DPA).

National Dutch patent application

National Dutch patents are granted through a patent application procedure before the Dutch Patent Office. Several requirements must be met before patent protection is granted: the invention must be novel, must involve an inventive step and must be capable of industrial application.

The term ‘unexamined’ is often used when referring to Dutch national patents. Even though patent application procedures always involve a search into the prior art (national or international, depending on the choice of the applicant), the actual grant of the Dutch national patent will not be affected by the results of such a search. Hence, the results of the search into documents that destroy novelty or are prejudicial to inventive step never prevent applications for Dutch national patents from being granted. The underlying idea is that this would allow smaller companies to obtain patent protection as it limits prosecution costs. Subsequent enforcement proceedings will then address the issue of the patent’s validity.

European patents

A European patent will be valid in the Netherlands once the corresponding patent application that designates the Netherlands is granted. The rules of the DPA will govern the Dutch part of that European patent. The DPA distinguishes, in some respects, between Dutch patents granted via a European application and those granted following a Dutch national application. The distinction in their respective treatments relates primarily to the unexamined nature of Dutch national patents. However, the remedies are the same for both types of patents.

Most of the patents valid in the Netherlands are issued following application procedures with either the EPC or the PCT.

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