PATENT LAWS- NETHERLANDS
A patent is a right and the patentee, the individual who has obtained a patent granted by the government, has an exclusive right of use on his or her invention. This means that the patentee can prohibit others from using the discovery or producing and dealing in products containing the discovery.
The patent system is an exchange system. In exchange for protection of the discovery it is made public. Due to this publicity, science can elaborate on earlier discoveries so that technology can be further developed
The application has to be drawn up before a patent application can be filed. The form of the application should comply with the requirements that The Patents Act imposes for this. You can draw up the application yourself but you can also have this done by an expert, a patent agent. The final document is a legal paper and drawing up the application is therefore of great importance to the right that you will ultimately obtain.
The requirements for obtaining a patent To be considered for patent granting in the Netherlands an invention must satisfy three intrinsic requirements.
The product or process may not have been made public anywhere in the world before the date of filing the patent application, not even through actions of the inventor himself (for example through a company brochure or a presentation at a fair).
The discovery may not be obvious to the expert.
The invention must involve a technically demonstrable functioning product or production process.
For example, a perpetual motion machine does not satisfy this. Services, natural scientific theories, calculation methods, ideas without concrete interpretation and aesthetic designs are examples of what cannot be protected by patent. Other forms of protection, such as copyright, designs right or trademarks right may well apply to these.
THE APPLICATION PROCEDURE
If you want a patent for the Netherlands the procedure starts at the Netherlands Industrial Property Office in Rijswijk.
Although the intrinsic requirements (novelty, inventiveness and industrial applicability) apply, they are not examined. This examination takes place in court if a conflict arises.
PATENT FOR SIX OR TWENTY YEARS
After filing the patent application you will have to make a choice for a patent with a maximum duration of six or twenty years. You have thirteen months' time for this choice. If you want a twenty-year patent you must request a novelty search within thirteen months.
The results of the novelty search give an indication of what was already known. If you do not request the novelty search within thirteen months you will automatically obtain a six-year patent. Should you already know that you want a six-year patent before thirteen months have elapsed, you can of course indicate this in writing at the time of filing or later.
Patent application for a twenty-year patent
Anyone who applies for a twenty-year patent can ask for a novelty search when filing (or within thirteen months thereafter). The patent applicant can expect the result of the novelty search within six to nine months.
The applicant then has the choice to rewrite the patent application based on the (perhaps opposing) literature found, so that a more realistic patent is granted.
Novelty search needed for a twenty-year patent
A twenty-year patent can be granted following the novelty search (and possible rewriting of the patent application). Registration of the patent application takes place automatically eighteen months after filing (or earlier on request), regardless of whether the novelty report has been issued or rewriting has taken place.
Aim of novelty search
The state of the art must first be established to determine whether the subject of the patent application is new and inventive.
The state of the art is everything that has been made publicly accessible by word of month or in writing before the patent application is filed. The aim of the novelty search is to discover this state of the art.
Who conducts the novelty search?
A specialist from the NIPO or the European Patent Office searches in patent and non-patent literature (for example periodical articles and conference lectures) to establish the state of the art. In so doing the specialist makes use of both commercial and non-commercial databases
The novelty report
The result of the novelty search is recorded in a novelty report. In most cases the novelty report states several relevant patent publications and periodical articles.
The novelty report is extremely important to the patent applicant and third parties (for example competitors). This report is actually the only instrument with which they can assess whether the patent satisfies the requirements of novelty and inventiveness. After all, patents are granted without examination under the 1995 Patents Act. Even if it can be derived from the novelty report that the subject of the patent is not new or inventive. A patent applicant may opt for a national or international novelty search. No qualitative difference exists between the two types. The European Patent Office conducts the novelty search for the international type. The international type can be used when applying for a European patent or when following the PCT route