The current Netherlands Patent Act (ROW) dates back to 1995. A great many technological and legal developments have taken place since then. So it's high time for an update to the Dutch patent legislation. Did you know, for example, that the current patent law offers very little protection when it comes to our own North Sea? This while at the same time a great deal of innovation is taking place there such as the construction of offshore wind farms and the installation of all kinds of cables and pipelines.
PS. The enclosed image is generated with AI.
The current situation
Since 1995 we have had a ‘registration patent’ system in the Netherlands. This means that inventions claimed in patent applications are only ever subjected to an official novelty search after which a Dutch patent is always registered and published automatically regardless of whether the outcome of this official novelty search was positive or negative. Only in exceptional cases when a patent dispute comes before a court will a judge check to see if the claimed invention is actually novel and inventive. This saves the patent applicant money. However, a major disadvantage of this system is that there is a great deal of uncertainty in the Netherlands about the actual scope of protection of ‘registration patents’.
The situation is about to change
A new Netherlands Patent Act is to be introduced for which a Bill has already been drafted. One of the main proposed changes is the reintroduction of the ‘examined patent’. This means that in future a Dutch patent will only be granted if all the legal requirements have been met and the patent application has been strictly assessed for novelty and inventive step. As a result, a granted Dutch patent will once again offer more legal certainty about its value.
Another important proposal involves extending the protection of Dutch patents to the offshore exclusive economic zone. On top of that there are proposals for introducing straightforward ways for competitors to raise objections when they feel that a patent has been wrongly granted. Finally, there are proposals for making the patent granting procedure even more customer-friendly.
Online public consultation
An online public consultation on the Bill for the New Netherlands Patent Act (NROW) is currently taking place. Interested parties can give their feedback on the Bill until 31 March 2025. So you should feel free to have your say on the matter.
My firm, EP&C, represents many innovative companies in the Netherlands and therefore submitted a comprehensive response last week. We understand that an ‘examined patent’ can provide significantly more legal certainty. On the other hand, it must be said that we did not experience the current ‘registration patent’ as problematic. The result of the official novelty search already provides us with considerable insight into the validity of a patent. Furthermore, we welcome the increased opportunities to object against wrongly granted patents and the reinforcement of patent protection for inventions on them.
We also made some critical comments. For instance, we advocate avoiding duplication of work/costs. In our opinion, there should no simultaneous discussions with a Dutch and a European examiner. The solution to this can be found in the timing of the deadline within which the substantive review for the Netherlands has to be applied for.
I am very keen to find out more about your views on the Dutch patent system and would be happy to discuss them with you. If you have any questions, please don't hesitate to contact me.
Rudi Riemens writes a monthly blog for Goedemorgen Groente.
