NETHERLANDS Law and Practice Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
explain technical aspects related to the case and their input is focused on technical issues rather than legal analysis. There is no cross-examina- tion of experts in Dutch patent proceedings, and although experts are generally present at hear- ings, they usually only provide clarification on technical points if requested by the court or one of the parties. 3.7 Procedure for Construing the Terms of the Patent’s Claim There is no separate procedure for interpreting the features of the patent claim(s); issues con- cerning patent validity, claim construction and infringement are addressed within the same pro- ceedings. 3.8 Procedure for Third-Party Opinions The court has the discretion to order an expert report or to hear an independent expert on its own initiative. However, this discretion is rarely exercised in patent cases. Revocation or cancellation actions against a pat- ent can be filed independently or as a counter- claim in an infringement case. In principle, anyone with a legitimate inter- est in the claim can initiate such proceedings. However, for revocation proceedings against a Dutch national patent, the claimant must obtain a patentability (nullity) opinion from the Nether- lands Patent Office before filing the action. The District Court of The Hague has the authority to revoke or cancel a Dutch national patent or 4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation
the Dutch part of a European patent, either in full or in part, on the following grounds: • the invention is not patentable (eg, math- ematical methods); • the invention does not meet the patentability requirements (lack of novelty, inventive step or industrial applicability); • the patent does not provide a sufficiently clear and complete description of the inven- tion to enable the person skilled in the art to carry out the invention; • the claim(s) contain added subject matter; and • the patent holder is not entitled to the patent. 4.2 Partial Revocation/Cancellation The District Court of The Hague can revoke or cancel a Dutch national patent or the Dutch part of a European patent partially, in cases where only one or some claims of the patent are found to be invalid. This can happen if, for example, certain claims fail to meet the patentability cri- teria (novelty, inventive step, industrial applica- bility). The other claims elements of the patent remain valid. 4.3 Amendments in Revocation/ Cancellation Proceedings A patentee may file one or more auxiliary request in revocation/cancellation proceedings, either in first instance or appeal, provided that they do not broaden the scope of protection. The request must be submitted as early as possible in the proceedings. The court may put limitations on the number of auxiliary requests. 4.4 Revocation/Cancellation and Infringement Patent cases are not bifurcated. This means that infringement and validity are usually heard together.
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