NETHERLANDS Trends and Developments Contributed by: Rutger Kleemans, Jelle Drok, Ruben Laddé and Allard van Duijn, Freshfields
The Court clarified in the BMS v Sandoz/Teva cases that the main concern of the technical effect is whether the effect falls within the nature of the invention, ie, that accepting the technical effect does not change the nature of the claimed invention. According to the Court, BMS’s post-published evidence demonstrated that apixaban is a bet- ter inhibitor of Factor Xa than the compounds disclosed in the prior art, leading the Court to find that apixaban would not be obvious to the skilled person. The Generics appealed to the Dutch Supreme Court. On 20 December 2024 Advocate Gen- eral Van Peursem upheld the Court of Appeal’s decision and confirmed that post-published evidence can indeed be taken into account in the assessment of inventive step. It remains to be seen what the Supreme Court will ultimately decide. Modernisation of the Dutch Patent Act On the 20 December 2024, the Dutch govern- ment published an explanatory memorandum for the modernisation of the Dutch Patent Act ( Rijksoctrooiwet 1995). This draft seeks to mod- ernise the national patent system based on the review of Dutch IP policy. The most important amendment is the introduc- tion of the examination of a filed patent. Cur- rently, a patent is granted without examination,
regardless of whether it meets the criteria of nov- elty, inventive step and industrial applicability. The applicant does receive an initial indication of novelty and inventive step through a report on the state of the art. Based on this, the appli- cation can be amended, but it remains unclear whether the patent is valid. The validity of a pat- ent is currently only examined by the courts after it has been granted if there is reason to do so. The modernisation of the Dutch Patent Act strives for a patent application that will be exam- ined by the Dutch Patent Office against the legal criteria. Based on this assessment of the patent- ability of the invention, the Dutch Patent Office will decide whether to grant the patent or not. Currently, the proposed legislation is in the early stages of consultation and must still be finalised and subsequently be approved in parliament. Conclusion The UPC is now fully operational and has intro- duced new opportunities and challenges. The contrasting approaches in different UPC divi- sions may lead to some uncertainty in future patent cases. It remains to be seen how these conflicting interpretations will evolve in future cases. Simultaneously, the Dutch government is push- ing forward with the modernisation of the Dutch Patent Act, aiming to enhance the certainty of the patent granting process.
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