Philip ter Burg
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Patent law deals with the legal protection of inventions. Traditionally, invention is often thought of technical things, such as the light bulb, the internal combustion engine, the computer, the airplane, solar panels, or the 3-D printer.
But very many different things can be an invention. For example, everyday items are also considered inventions within the meaning of the Dutch Patent Act 1995 and the European Patent Convention. Think, for example, of the cheese slicer, aspirin, bicycle or license plate. The term invention can relate to a finished product, but also to a process, for example, a way to make contactless payments or engage in vertical farming, or to a "substance," such as medicines, shampoo and toothpaste.
What is a patent?
A patent, also known as a patent, is an exclusive property right to an invention of a technical product or process. After obtaining a patent on an invention, no one other than the right holder may make, use, resell, rent, deliver, offer, import or stock the invention.
The patent system is designed to encourage invention. Inventors may have an interest in protecting their invention so that they have an opportunity to recoup their investment. In addition, others can check the patent register to see if their idea has already been invented.
In the Netherlands, patent law is governed by the Dutch Patent Act 1995. The European Patent Convention governs European patent applications. The requirements listed in the treaty largely correspond in substance to the requirements of the law for Dutch patents.
A patent is granted for inventions in all fields of technology if:
1. the invention is new;
which means that the invention has not been made publicly available by written or oral description, by application or by any other means prior to the date of the patent application. Nor must there have been a prior patent application.
2. involving an inventive step;
the invention must be inventive. The criterion for this is "whether, taking into account the prior art, the solution to the problem facing the inventor was not obvious to the person skilled in the art on the application date. This should be based on the normal (average) person skilled in the technical field in which the patent or application is also located."
3. the invention must be industrially applicable;
the invention must be capable of application by the person skilled in the art based on the information contained in the patent application. An invention that can be applied only with knowledge that was not available until after the patent application date or with material that cannot be manufactured until after the application date does not provide a valid patent.
Patents can be applied for at the Netherlands Patent Office (OCNL). For the patent application, the technological aspects of the invention should be described in detail in a patent specification. It is recommended that a patent specification be prepared by patent attorneys. These are technicians with patent law knowledge.
Within thirteen months from the filing date, the applicant must request a state-of-the-art examination (novelty examination), on pain of the application being invalidated. The result of the examination is communicated to the applicant in the form of an opinion after approximately nine months. However, the result of the examination and the opinion given on the basis thereof are not formally relevant to the grant of the patent. Based on the findings, the applicant may decide to withdraw or amend the application (provided the amendment remains within the scope of the original application).
Regardless of the outcome of the novelty search, the patent application is published 18 months after filing and included in the patent databases which can be accessed free of charge via the Internet.
The period of validity of the Dutch and European patent is up to 20 years from the day the application was filed. To keep the patent valid, annual maintenance fees must be paid. When the patent term has expired or no patent is granted, anyone is free to apply the invention.
European Patent Convention
Since 1973, the European Patent Convention has made it possible to obtain a patent in multiple treaty countries with one central application to the European Patent Office (EPO).
The application states the countries for which patents are sought. This is followed by a review of formal requirements, a novelty search, disclosure, and decision by the EPO.
On average, this procedure takes three to four years. Unlike national patent applications, European patent applications allow third parties to file an opposition within nine months of the publication of the grant. If the opposition succeeds, the patent is revoked retroactively. An appeal procedure may follow.
After the patent is granted, it still needs to be validated in each member state where protection is sought. The current European patent system involves very high costs and is complicated because each member state requires a translation of the European patent into the official language of that member state.
Work on an EU patent has been going on since 1975, leading to a so-called unitary patent with a Unified Patent Court (UPC). This unifies substantive patent law for the EU area (based on 2 EU Regulations) and creates a single supranational patent law with a unified EU patent jurisdiction.
As of June 1, 2023, the European patent system will finally be revamped with the introduction of the unitary patent and the creation of the UPC.
The unitary patent offers the possibility of obtaining a unitary patent for 17 member European countries through a single registration. As a result of the unitary patent and the UPC, national validity examinations and the associated administrative obligations and translation requirements are no longer necessary.
Through the UPC, a ruling can be obtained from a single authority regarding the validity or infringement of a European patent that operates in all the 17 member states. This avoids separate, parallel national proceedings. The patent court, the UPC, has headquarters in Munich and Paris. In The Hague, there will be a local division at The Hague Hearing Centre. Companies can litigate European patent cases there in Dutch and English.
UPC's costs depend on the financial importance of the lawsuit. These can add up considerably. The cost of an infringement lawsuit starts at €11,000. Small businesses (up to 50 people and up to €10 million in sales) get a 40% discount on the amounts charged by the UPC. Still, it can be difficult for small parties to fight large ones if the financial stakes are high.
After the UPC takes effect, there is a transition period of at least 7 years for European patents. During this period, the patentee can choose whether or not to use the UPC with the European patent. If it is chosen not to use the UPC, then litigation will continue to go through the national courts. This is called "opting out" of the UPC. Since March 1, 2023, it is already possible to pass on an "opt-out" to the clerk of the UPC. Opting out is recommended when one wants the patent to apply in fewer than five countries.
If you would like to know more about patents, the unitary patent or the UPC, please do not hesitate to contact us.
 They are: Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia and Sweden.
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