Patent Prosecution

JurisdictionEuropean Union
Law FirmHGF Ltd
Subject MatterIntellectual Property, Patent
AuthorAchim Krebs, Vincent van der Mark and Jessica Kroeze
Published date06 February 2023

How do you get a patent in your jurisdiction?

Q: What types of patent are granted in your jurisdiction, and what rights do they confer on owners?

National Dutch and European patents are governed by the Dutch Patent Act 1995. The act and the courts have sought to harmonise Dutch patent practice with the European Patent Convention (EPC).

Dutch national patents are automatically granted through a registration system, without undergoing substantive examination.

There are generally two ways to obtain patent protection in the Netherlands:

  • by filing a national patent application with the Dutch Patent Office (DPO); or
  • by validating a patent granted by the European Patent Office (EPO) in the Netherlands.

Either is a utility patent, with a term of 20 years from the filing date. There are no utility models or petty patents available in the Netherlands.

Rights of the patentee are defined in Articles 53 and 73 of the Patent Act and include direct infringement, both literal or by way of equivalence, as well as indirect or contributory infringement.

The act principally defines two types of infringement. Exclusive rights include, in or for their business:

  • to manufacture, use, place in circulation, sell, rent out deliver or otherwise trade in a patented product or for any of the aforementioned purposes in the Netherlands or Netherlands Antilles (Curaçao, St Maarten, Saba, St Eustatius and Bonaire, but not Aruba) to offer, import or stock the patented product; and
  • to apply a patented process or to use, put into circulation sell, rent out, deliver or otherwise trade in the product obtained directly by the application of that process or to offer, import or stock such product for any of the aforementioned purposes in the Netherlands or Netherlands Antilles.

In the case of indirect or contributory infringement, a patentee may institute the claims against any person who offers means relating to an essential element of the invention for the application of the patented invention in the Netherlands or Netherlands Antilles.

In addition, a patent owner may claim reasonable compensation from any person for acts referred to above during the period between publication and grant of a patent.

Q: What inventions are eligible for patent protection in your jurisdiction?

Dutch patent law is closely harmonised with the EPC and it follows the same eligibility requirements. Patentable inventions are to be granted for any inventions, in all fields of technology, provided that they meet three conditions - they must:

  • be novel;
  • involve an inventive step; and
  • be capable of industrial application.

In addition, the invention must be sufficiently disclosed and described clearly in the patent.

Q: Are there any specific exemptions to patent eligibility?

In line with the EPC, certain subjects are not considered inventions under the Patent Act, including:

  • discoveries, scientific theories or mathematical methods;
  • aesthetic creations;
  • schemes, rules or methods for performing mental acts, games or business methods, or computer programs as such; and
  • presentations of information.

Q: Are there technology-specific eligibility issues that applicants must navigate (eg, in software, business methods, AI, medical diagnostics, pharmaceuticals, medical procedures, etc)?

The Patent Act also excludes inventions from patentability, including:

  • the human body in the various stages of development;
  • the discovery of parts of it that include sequences or partial sequences of the genome, plants and animal races;
  • predominantly biological methods; and
  • methods for the treatment, diagnosis or therapy of the human or animal body.

Further, the act defines certain methods as being contrary to public policy and morale as not being subject to...

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