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Your Business First

OCTROOIEN | MODELLEN

Patent the wheel? No problem!

Patent-the-wheel-No-problem.jpg'Re-invent the wheel', is a well-worn expression. It means you are doing something you have already done, which generally does not pay.

The weird thing is that if you were literally to re-invent the wheel and apply for a Dutch patent on it, you would actually get it, despite the fact that the wheel has already been invented. Of course it’s not really worth doing, but that's beside the point.

A lot of people find it strange that this is how the system works because it does not seem to be efficient. Why would you grant a patent on something if the innovation already exists?

Let me explain.

Registration system

In the Netherlands we work on the basis of a registration system. This literally means that every Dutch patent application (which is filed in the desired format) is granted. In Belgium and France they work in the same way. In the rest of the world they do things differently: there a patent will only be granted after strict scrutiny.

Why do we use the Registration system?

The European patent was introduced in 1977. The European patent became so popular that it resulted in a considerable drop in the number of Dutch patent applications. For many entrepreneurs this was a matter of convenience as well as costs.

In order to meet Dutch businesses halfway, it was decided to switch to a different granting procedure. By no longer assessing patent applications on the basis of a substantive examination, but just registering them, it became a great deal cheaper and easier to apply for a Dutch patent.

What is the point of having a patent if it has not been assessed on the basis of a substantive examination?

I can hear you thinking, "If every application is granted, what is the point of having a Dutch patent?"

There is a lot of point in having one! The patent application is, in fact, assessed, but the result does not have any impact on the patent being granted.

That is confusing. Is it or is it not assessed?

You will receive a novelty report with every patent application. In this report an examiner from the granting body gives his/her opinion on the novelty, inventive step and the susceptibility of industrial application of the invention. The patent is granted irrespective of whether the novelty report is positive or negative.

So an assessment does take place, but the patent is always granted.

Who ultimately decides whether the patent is legally valid? 

The court does. But it does not have to come to that. Only a small percentage of all patents are assessed in court.

A patent attorney will be able to tell you if you need to take account of this. If there is no firm basis for the patent, you need to talk to the patent holder. In my experience parties are generally able to settle the matter by 'talking about it'. If not, you can always take the matter to court.

Topics: PATENT, Tips