NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
1. Intellectual Property Rights and Granting Procedure 1.1 Types of Intellectual Property Rights Inventions are primarily protected by patent rights. Patent rights in the Netherlands are based on statutory law, although case law plays a role in interpreting and applying these statutes. Differ- ent types of patents are available, namely: • Dutch national patents; • European patents, validated in the Nether- lands; and • unitary patents. Additionally, supplementary protection cer- tificates (SPCs) can be granted to extend the exclusivity of certain pharmaceutical products beyond the expiration of a patent. In addition to patents, the Dutch legal system also offers protection for trade secrets, which encompass confidential know-how and busi- ness information. However, as the focus of this article is on patents, they are not addressed fur- ther in this article. 1.2 Grant Procedure The grant procedure for patent rights involves different steps, depending on the type of patent. National Patents The grant procedure for national patents in the Netherlands is primarily administrative. Once a patent application is filed with the Netherlands Patent Office, it is granted as long as the formal requirements for the application are met. This procedure does not involve a substantive exami- nation of the patent’s validity.
• Novelty search: a novelty search is manda- tory and must be requested no later than 13 months from the patent application date. The search result, along with a written opinion on the patent’s strength, is published, providing insight to the applicant and third parties. • Processing time: the average time for pro- cessing a Dutch patent application, from filing to grant, is about 18 months. A bill is currently pending that will significantly change the grant procedure, the most impor- tant changes being that the grant procedure will include a substantive examination of the patent’s validity and that a patent can be opposed within nine months after grant. European Patents (With or Without Unitary Effect) The European Patent Office (EPO) provides a centralised procedure for granting European patents, which includes several key steps. • Examination of formal requirements: the EPO checks if the formal application requirements are met. • Novelty search: the EPO conducts a search to assess the novelty of the invention. • Publication: the application is published 18 months after filing, although early publication can be requested. • Substantive examination: within six months after the novelty report is published (usually around two years after filing), the applicant can request a substantive examination. The EPO will then assess the validity of the pat- ent. • Third-party observations: third-party observa- tions can be submitted after the publication of the European patent application and while the application is pending before the EPO.
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