NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
amended claims must be covered by the original application and cannot provide broader protec- tion than the claims the patent was granted for. If there are third parties with interests in the patent, such as licensees or pledge holders, the amend- ment will not be recorded unless they consent. A patentee may also amend its patent during litigation by submitting auxiliary requests during the court proceedings, however this option may be more limited depending on the specific court procedure (eg, allowing only a small number of Post-grant amendments of European patents can be made through a limitation procedure filed by the patent owner. Opposition takes prec- edence over a limitation procedure and during opposition the Opposition Division may maintain the patent in amended form. Amendments made after filing may not broaden the scope of the patent’s protection. auxiliary requests). European Patents Additionally, a patentee may amend the national part of a European patent during litigation by submitting auxiliary requests during the pro- ceedings. The same limitations may apply as for national patents. 2. Initiating a Lawsuit 2.1 Actions Available Against Infringement Civil Enforcement There are three ways of litigating patent infringe- ment cases in the Netherlands. • Preliminary injunction (PI) proceedings to obtain interim injunction relief. This type of proceedings typically takes two months from start to decision. Under certain circumstanc-
es, the Dutch court also grants cross-border infringement relief. • Accelerated proceedings on the merits, which will take about 12 to 15 months until a deci- sion is obtained. • Regular proceedings on the merits, which take at least one and a half years to obtain a decision. Customs Patent enforcement can also be carried out through Dutch customs. Patentees may request Dutch Customs Authorities to detain or seize infringing goods at land, sea or air borders. Criminal Proceedings In addition, criminal court proceedings for grave cases of wilful patent infringement could be initi- ated by the public prosecutor. In practice, how- ever, patent infringement in the Netherlands is seldomly addressed through criminal proceed- ings. 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property There are several remedies available for third parties to remove the effects of a patent. Opposition Action European patents can be opposed at the EPO within nine months after publication of the grant. There is no special legal interest required to file an opposition action. No opposition proceedings can be filed against the grant of Dutch national patent. Instead, inval- idation or revocation actions must be pursued directly through the District Court of The Hague. Revocation/Invalidation Action A third party can seek the revocation or invalida- tion of a Dutch national patent or the Dutch part
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