NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
paid or if the patent is invalidated through nullity proceedings. Pharmaceutical and plant protection products can receive additional protection through an SPC for up to additional five years (or five and a half years if the pharmaceutical product has undergone a series of tests under the Paediatric Investigation Plan (PIP). See 1.6. Further Protec- tion After Lapse of the Maximum Term for more information on SPCs. 1.5 Rights and Obligations of Owners of Intellectual Property Rights Rights of Patent Owners Patent owners are granted exclusive rights over their inventions, meaning they can prevent oth- ers from manufacturing, selling, or using their patented products or processes without permis- sion. These rights allow patent holders to take action, such as seeking an injunction to stop unauthorised use or demanding compensation in the form of damages. Specifically, patent own- ers have the right to prohibit others from: • manufacturing, offering for sale, distributing or using a patented product; • applying a patented process or offering such a process for use, knowing that the process is patented; and • selling or distributing products directly obtained using a patented process. The rights and remedies of the patent owner are further detailed in Section 6. Obligations of Patent Owners Patent holders have to pay annual maintenance fees have to keep their patents in force. For a Dutch national patent, the first payment is due three years after the application. Mainte-
nance fees increase over the life of the patent. For example, the fee payable in the fourth year is EUR40 and the fee payable in the twentieth year is EUR1,400. 1.6 Further Protection After Lapse of the Maximum Term SPCs can extend the protection of a patent for medicinal and plant protection products in addition to the regular maximum protection term of 20 years. SPCs provide the same rights as those attached to the patent, with exceptions for stockpiling and manufacturing. SPCs must be requested within six months of either marketing authorisation or the patent grant, if the authorisation was granted earlier. The application must be submitted to the Neth- erlands Patent Office, which will assess whether the application meets the conditions for obtain- ing a certificate, namely: • the product is protected by a basic patent in force; • there is a valid authorisation to place the product on the market; • the product had not already been the subject of an SPC; and • the authorisation is the first authorisation to place the product on the market. The duration of the SPC is based on the period between the patent application and the first mar- keting authorisation in the EU, with a maximum extension of five years. SPCs can be extended for up to a further six months for products that have been subject to a PIP.
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