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Patents Act of the Kingdom of November 7 1910 as last amended of May 29 1987
| Patents Act of the Kingdom | |
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| (of November 7, 1910, as last amended
by the Act of the Kingdom of May 29, 1987) | |
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| Chapter I
Definitions. Patents: A General Notion.
Subject Matter for Which and Persons to Whom Patents are Granted | |
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| 1. In this Act of the Kingdom and the Rules based on it: | |
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| European Patent Convention shall mean the Convention on the Grant of European Patents signed in Munich on October 5, 1973; | |
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| European Patent shall mean a patent granted under the European Patent Convention, insofar as it has been granted for the Kingdom; | |
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| Cooperation Treaty shall mean the Patent Cooperation Treaty done at Washington on June 19, 1970; | |
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| International Application shall mean an application filed in pursuance of the Cooperation Treaty, in which the Kingdom is designated and from which it is evident that the applicant wishes to obtain for the Kingdom a patent granted in accordance with this Act of the Kingdom. | |
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| 1A. A person who has invented a new product or a new process shall, upon his application, be granted a patent. | |
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| (1) Products or processes shall be considered not to be new only when they already form part of the state of the art. | |
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| (2) The state of the art shall comprise everything made available to the public by means of a description or in any other way before the date of filing of the application. | |
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| (5) This Section shall not apply to everything that was made available to the public within six months preceding the filing of a patent application as a direct or indirect consequence of either an evident abuse in relation to the applicant or his legal predecessor, or the fact that the applicant or his legal predecessor displayed the product in question or showed the process in question at an official, or officially recognized, international exhibition falling within the terms of the Convention on International Exhibitions signed in Paris on November 22, 1928, and last revised by Protocol of November 30, 1972. | |
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| (6) Official recognition of exhibitions in the Netherlands shall be accorded by Our Minister of Economic Affairs, and of exhibitions in the Netherlands Antilles or Aruba by the Government of the country concerned. | |
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| (1) The subject matter for which a patent application has been filed shall be considered as an invention if, before the date of filing, having regard to the state of the art, it was not obvious to a person skilled in the art. | |
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| (1) An invention shall only be patentable if it is capable of procuring some result in any field of industry, including agriculture. | |
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| (2) Nevertheless no patent shall be granted in respect of plant or animal varieties or essentially biological processes for the production of plants or animals, with the exception of microbiological processes or the products thereof. | |
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| 5. No patent shall be granted for products or processes the publication of which would be contrary to public order or morality. | |
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| 5A. Each patent application shall relate to one invention only, or to a group of inventions linked in such a way that they form a single general inventive concept. Further rules concerning this may be adopted by Order in Council of the Realm. | |
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| (1) A person who has duly filed, in any of the countries party to the International Union for the Protection of Industrial Property, in accordance with the laws in force in that country, or, in accordance with treaties concluded between two or more of the above-mentioned countries, an application for a patent or for a utility certificate or for the protection of a utility model shall enjoy a right of priority within the Kingdom for a period of 12 months from the date of filing the application with regard to the obtaining of a patent for the subject matter in respect of which the protection referred to above has been applied for. The foregoing shall apply mutatis mutandis to a person who has applied for an inventor’s certificate if the relevant legislation provides for the possibility of choosing between the grant of such a certificate or of a patent. | |
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| (3) If the person entitled to do so has filed more than one application for the same subject matter, only the first application shall serve as a basis for claiming a right of priority. Nevertheless, a subsequent application for protection in the same country may serve as a basis for claiming a right of priority, provided that, at the date of filing the subsequent application, the previous application has been withdrawn, abandoned or refused without having been laid open to public inspection and without having left any rights outstanding, and provided it has not yet served as a basis for claiming a right of priority. If a subsequent application has served as a basis for claiming a right of priority, the previous application may not thereafter serve as a basis for claiming a right of priority. | |
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| (5) The right of priority cannot be refused on the ground that the applicant claims more than one right of priority, even if the rights of priority originated in different countries. Neither can priority be refused on the ground that the subject matter for which a patent application has been filed comprises elements for which no rights were claimed in the claims formulated in the application in the country of origin, provided that the documents of the latter application mention the product in question or the process in question with sufficient accuracy. | |
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| (6) A person who wishes to avail himself of the right of priority must claim it in writing upon filing the application or within three months thereafter, stating the filing date of the application upon which his claim is based and also the country in which or for which it was filed; within 16 months after filing the application upon which his claim is based, he must state the number of that application. Finally, he must submit the documents which shall be designated by the Patent Office before such date as may be fixed by that Office. | |
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| (7) The right of priority shall lapse if it has not been claimed upon filing the application or within three months from the filing date of the application or if the documents required for that purpose have not been submitted prior to the date fixed therefor. | |
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| (1) The applicant may divide a previously filed application by filing a divisional application for part of the contents thereof. The latter application shall be deemed to be filed on the filing date of the original application except insofar as the provisions of Sections 22(1), 22A(5) and 22C(3) are applicable. | |
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| (2) Where the inventor cannot be deemed to have found compensation for the lack of being granted a patent in the salary he earns or in any extra remuneration he receives, the employer shall be obliged to award him equitable remuneration having regard to the pecuniary importance of the invention and the circumstances under which it was made. Where the employer and the inventor cannot agree on the amount of that remuneration, they may apply to the Patent Office in writing with a request that the amount be determined by the Patent Office. The Patent Office shall comply with that request. The parties shall be bound by its decision, which shall be accompanied by the reasons therefor. If the employer and the inventor do not avail themselves of this right, Section 56 shall be applicable. Any right of the inventor to claim under this provision shall lapse after expiration of three years from the date of the grant of the patent. | |
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| (3) Any stipulation which differs from the provisions laid down in the preceding paragraph shall be void. | |
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| 11. Where a product or a process has been invented by two or more persons who worked together by agreement, they shall have a joint right to a patent. | |
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| (2) Any stipulation which differs from the provisions laid down in the preceding paragraph shall be void. | |
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| Chapter II
The Grant of Patents | |
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| Part I
The Patent Office and The Industrial Property Office | |
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| 13. Applications for a patent shall be filed at the Patent Office and patents shall be granted by the Patent Office. | |
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| (1) There exists in the Netherlands an Industrial Property Office. This Office is an institution of the Netherlands. It shall serve, insofar as patents are concerned, as the central registry for the Kingdom, pursuant to Article 12 of the International Convention for the Protection of Industrial Property. The Patent Office forms part of the Industrial Property Office. | |
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| (2) The Patent Office shall consist of: | |
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| An Examining Division or a Special Division may consist of one member. | |
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| (3) The President, one or more Vice-Presidents and the other members of the Patent Office shall be appointed and dismissed by Us. Before taking office, the President shall make a pledge to Us and the members shall make a pledge to the President, the contents of which shall be determined by Order in Council. | |
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| (4) The President of the Patent Office shall be the Director of the Industrial Property Office at the same time. | |
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| (1) The further organization and the procedure of the Patent Office shall be regulated by Order in Council, subject to the provisions laid down in this Chapter. | |
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| (2) The Order in Council referred to in the preceding paragraph shall regulate inter alia: | |
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| (a) the number of Vice-Presidents and members of the Patent Office; | |
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| (b) the composition of the Divisions and the powers of the Divisions to perform the duties allocated to the Patent Office; | |
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| (c) the procedure on deputizing for the President; | |
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| (d) the summoning and hearing of applicants, opponents and other interested parties, as well as witnesses and experts in the execution of this Act of the Kingdom, and the compensation to be awarded to witnesses and experts; | |
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| (e) the registers to be kept pursuant to this Act of the Kingdom and the procedure in respect of entries to be made in those registers of documents other than patent applications; | |
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| (f) the requirements with which documents other than patent applications shall comply for entry in the said registers pursuant to this Act of the Kingdom; | |
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| (h) the procedure for making the registers of the Patent Office available for inspection by the public; | |
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| (i) the hours of business during which the Industrial Property Office shall be open to the public in the execution of this Act of the Kingdom. | |
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| (3) By Order in Council fees shall be payable for: | |
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| (a) entry in the register of documents other than patent applications; | |
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| (b) issuing copies or extracts from the registers of the Patent Office; | |
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| (c) issuing priority certificates; | |
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| (d) extending the time periods determined by virtue of this Act of the Kingdom; | |
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| 16. The order in which rights shall arise from entry in the registers of the Patent Office of documents other than patent applications shall be determined by the date of filing of such documents at the Patent Office for entry in the registers. | |
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| (1) The Patent Office shall have the right to refuse entry in a register of a document, provided it is not a patent application, only where it does not comply with the requirements prescribed in or by virtue of this Act of the Kingdom for a document of that kind, where it does not explicitly indicate the patent to which it relates or where any condition for entry in the registers stipulated in this Act of the Kingdom has not been satisfied. | |
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| (2) The person who requests the making of the entry shall be notified in writing of the grounds for the refusal. | |
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| (3) An appeal shall lie from this refusal to a court of law in accordance with the provisions laid down in Section 55. | |
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| (4) Any person who feels aggrieved by an entry in a register of a document, provided it is not a patent application, shall have a right to request the court, in accordance with the provisions laid down in Section 55, to cancel such entry. | |
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| (3) The request must be filed at the Patent Office in writing as soon as possible, but at the latest within one year from the expiry of the unobserved time limit. The omitted act must be accomplished at the same time as the request is submitted. The request shall be accompanied by the reasons therefor and shall be signed by the person who made the request or a person appointed as his representative authorized in writing. If the person who made the request does not live in the Kingdom, he shall be obliged to elect domicile with a representative in the Netherlands. When the request is filed, a fee to be prescribed by Order in Council of the Realm shall be payable. | |
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| (4) A Special Division of the Patent Office, set up for this purpose, shall take a decision on the request, the person who made the request having been heard or at least duly summoned. The decision shall state the grounds on which it is based and the Patent Office shall give notification of it without delay to the person who made the request. With regard to such a decision, Section 24A shall apply mutatis mutandis. | |
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| (6) Any person who, during the period between the loss of rights or the means of redress and the restoration to the prior state, has, within the Kingdom, begun the manufacture or the putting in practice, in or for his business, of the invention for which a patent has been granted as a result of that restoration, or who has begun to carry out his intentions to do so, may continue to do the acts referred to in Section 30(1), notwithstanding the patent.Section 32(2) and (5) shall apply mutatis mutandis. | |
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| (1) The Patent Office and its Divisions shall be empowered to hear witnesses and experts. Any person who has been summoned as a witness and has his residence in the Netherlands shall be required to obey that summons, to declare to the President of the Patent Office or of the Division under oath or in an equally binding form that he will speak the whole truth and nothing but the truth, and to give evidence, without prejudice to the right to refuse evidence where any of the relations referred to in Section 1946 of the Netherlands Civil Code exists between the witness and an interested party who has been summoned or who has appeared, or where the witness is in a position referred to in paragraph (3) of that Section. The experts shall be obliged to perform their task impartially and to the best of their knowledge. The Patent Office and its Divisions may enjoin secrecy upon them. | |
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| (2) The Patent Office and its Divisions shall furthermore be empowered to order any interested party who has his residence in the Netherlands to appear in person. | |
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| 18A. By Order in Council, provisions shall be laid down in respect of the admission of persons who are to act as representatives to the Patent Office, as well as provisions in respect of the professional conduct of representatives and the supervision thereof. By that Order in Council, the authorities charged with that supervision may be empowered to summon and hear witnesses and experts, and witnesses living in the Netherlands may be required to appear and to give evidence under oath or in an equally binding form, as specified by the Order in Council, without prejudice to the right to refuse to give evidence on the grounds stated in Sections 217 to 219 of the Netherlands Code of Criminal Procedure [Het Nederlandse Wetboek van Strafvordering]. Furthermore, provisions shall be laid down for such cases in respect of the summoning and hearing of the witnesses and experts. | |
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| 19. All documents addressed to and issued by the Patent Office shall be exempt from stamp duty and from the formality of registration. | |
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| 19A. If the Industrial Property Office is closed on the last day of any time limit to be observed under this Act of the Kingdom by or vis-à-vis the Patent Office, that time limit shall be extended for the purposes of this Act of the Kingdom until the end of the first day thereafter on which the Office is again open. | |
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| Part II
Grant of the Patent | |
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| (1) Applications for a patent shall be accompanied by a specification of the invention and both the application and the specification shall be written in the Dutch language. For a period of time which it shall determine, the Patent Office may grant exemption from the provision that the application and the specification shall be written in the Dutch language if special circumstances so warrant. | |
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| (2) Where these provisions are not complied with, the documents which have been filed shall not be considered as an application for a patent. | |
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| 21. Upon filing the application proof shall be furnished that a fee, the amount of which shall be prescribed by Order in Council of the Realm, has been paid to the Industrial Property Office. | |
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| 21A. Not until proof has been furnished that a fee payable pursuant to this Act of Kingdom or the Patent Rules has been paid shall the application and the other documents for which the fee is due be deemed to have been filed. | |
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| (1) The date of filing at the Patent Office as well as a serial number shall be marked on the application. Without delay the Patent Office shall issue a receipt to the applicant which shall make mention of that date and that number. | |
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| (2) Applications shall be entered in a register in the order in which they are numbered and shall state the number. | |
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| (1) The patent application form shall: | |
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| (a) contain the name and place of residence of the applicant; | |
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| (b) contain the signature of the applicant or of a person appointed as his representative by written authorization; | |
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| (c) contain a concise designation of the subject matter of the invention; | |
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| (d) be accompanied by a specification of the invention, which gives a definition at the end, in one or more claims of the subject matter for which the exclusive right is sought. | |
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| (2) The application form and the accompanying specification of the invention and drawings shall comply with the further formal requirements to be prescribed by Order in Council. | |
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| (4) If the applicant does not have his place of residence in the Kingdom, he shall be required to elect domicile in the Netherlands with a professional representative, which election of domicile, subject to change of the domicile so elected notified to the Patent Office in writing, shall be deemed to remain in force even after the grant of the patent. Where the change of elected domicile takes place after the grant of the patent, the person with whom domicile is elected need not be a professional representative. | |
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| (5) Where the provisions under or by virtue of this Section have not been complied with at the time of filing the application, the Patent Office shall, within one month, notify the applicant accordingly, stating the provisions that have not been complied with. The application shall lapse if at the end of a period of five months from the date of filing, and without any further amendments, the stated provisions still have not been complied with. | |
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| (1) The specification of the invention shall be clear and complete; the definition at the end shall be precise. The specification shall, if necessary, be accompanied by corresponding drawings and, if required, it shall be elucidated by models, samples and tests, and furthermore it shall be of such a nature as to enable a person skilled in the art to understand the invention and put it in practice on the basis of that specification. | |
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| (2) Further formal requirements and further provisions for the making of the specification and drawings may be prescribed by Order in Council. | |
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| (4) This Section shall not apply if the Patent Office is of the opinion that the publication of the product or the process in respect of which a patent has been applied for would be contrary to public order or morality. | |
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| (3) If payment has not been effected on the due date, the Patent Office shall remind the applicant of that payment in writing within 14 days. If payment has not been made within three months from the due date, the Patent Office shall send a copy of this reminder to all persons who have acquired rights or who have instituted legal action on the basis of the application, as shown by documents entered in the public registers. Omission of the reminder cannot be invoked by law. | |
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| (1) Withdrawal of an application which has been laid open to public inspection or which has been published shall have no effect vis-à-vis third parties: | |
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| (a) where four months have not elapsed since the laying open to public inspection or the publication of the application; | |
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| (c) where no final decision has been taken in respect of legal proceedings instituted with regard to the application, as shown by documents entered in the public registers of the Patent Office. | |
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| 22F. Any person may notify the Patent Office in writing of data concerning an application which has been laid open to public inspection. Insofar as the Patent Office considers that there are no objections to this data and to such other data in respect of the application being laid open to public inspection which it may otherwise acquire, the Patent Office shall, without delay, annex the data to the application which has been laid open to public inspection and notify the applicant thereof insofar as the said data have not been supplied by the applicant. | |
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| (5) Where it is decided that the person who has made the request is entitled to the patent or has a joint right thereto, such person shall to that extent replace the applicant. | |
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| (1) Where an interested party so requests in writing, the Patent Office may order without delay a preliminary hearing of witnesses with regard to facts which may be of importance to a decision which the Patent Office is to take in respect of an application that has been laid open to public inspection. On filing a request to that effect a fee to be prescribed by Order in Council of the Realm shall be payable. | |
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| (3) The hearing shall take place before a Special Division of the Patent Office. The person who made the request and, where the request was made by a person other than the applicant, the applicant shall be afforded an opportunity to be present at that hearing. | |
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| (7) The applicant shall be required, at the request of the Patent Office, to state within a time limit to be fixed by the Patent Office, the dates on which and the countries in which he filed a patent application for the same invention, to authorize the Patent Office in writing to make inquiries about those applications in those countries and to disclose the objections which, to the best of his knowledge, have been raised in respect of his application in those countries. | |
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| (8) In respect of the state-of-the art search, the Patent Office may request advice from the European Patent Office referred to in the European Patent Convention. | |
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| (10) Where the applicant or, after the application has been laid open to public inspection, another person so requests in writing, the Patent Office shall continue the search in respect of any part of the application concerning which, under or by virtue of the provisions of Section 25A, the search has not been performed or has not been completed. Upon the filing of such a request, a fee to be prescribed by Order in Council of the Realm shall be payable. Paragraph (4), second sentence, and paragraphs (5), (6), (7), (8) and (9) shall apply mutatis mutandis. | |
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| (5) The Patent Office shall make an entry in respect of the lapse in the public registers and shall give notification of it in the Journal referred to in Section 25. | |
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| (2) If the Patent Office deems the application not to be in conformity with the statutory requirements, the Patent Office shall so notify the applicant by a statement of the objections thereto and shall give him an opportunity to remedy the objections either by filing, within a reasonable time limit, a written defense in respect of the objections that have been raised or by supplementing or rectifying the original application. | |
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| (4) After the applicant has been heard, or at least duly summoned, by the Examining Division and, where necessary, been given a reasonable opportunity to remedy the objections, the Examining Division shall pronounce its decision as soon as possible. | |
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| (5) Before deciding whether or not to publish the application, the Examining Division may request the Patent Office to make a further search as provided for in Section 22I(1). | |
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| (6) If the application is in conflict with the provisions made by or under Section 5A, this shall be so determined in a decision of the Division. This shall be done as soon as possible at the applicant’s request. To this end the application, while still under examination, may, at the applicant’s request, be placed in the hands of the Examining Division. Paragraph (4), above, and Section 24(2) shall apply mutatis mutandis. Pending the decision, the procedure in respect of the application shall, at the request of the applicant, or if the Examining Division considers it appropriate to do so, be suspended for the remainder. | |
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| (1) If the Examining Division deems that the application does not qualify for the complete or partial grant of a patent, it shall decide that the application shall not be published. In the contrary case, it shall decide that the application shall be published. | |
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| (1) Within a period of three months following the final decision, the applicant may lodge an appeal with the Patent Office by filing a written notice of appeal stating the grounds therefor. | |
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| (3) An Appeal Division of the Patent Office shall take a decision in respect of the appeal after the applicant has been heard, or at least duly summoned. Before taking the decision, the Appeal Division may request the Patent Office to make a further search as provided for in Section 22I(1). | |
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| (5) The applicant shall be notified of a decision of the Appeal Division without delay and with a statement of the grounds for the decision. | |
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| (1) The Patent Office shall publish an application by giving notification of the decisions taken to that effect in a Journal to be issued by the Industrial Property Office where no further appeal lies or where the applicant has waived his right to appeal and as soon as the applicant has furnished proof that a fee, the amount of which shall be prescribed by Order in Council of the Realm, has been paid to the Industrial Property Office. Within 14 days following the date on which the Journal is issued, the Patent Office shall enter the publication under a consecutive number in the relevant public register. The application shall be deemed to have been withdrawn if proof of payment has not been submitted, after a decision of the Examining Division to publish the application, on the date on which the decision becomes final, or after a similar decision of an Appeal Division, within one month following the date on which the decision is taken. | |
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| (3) The applicant, the opponents and the persons making the request shall be informed without delay of the decision taken by the Examining Division in a written statement accompanied by the reasons therefor. | |
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| (1) Within three months following the date of the final decision the applicant, the opponents, the persons making the request and the person who has been mentioned as the inventor in the published application may lodge an appeal by filing with the Patent Office a notice of appeal stating the grounds therefor, which notice of appeal shall be signed by them or by a person appointed to represent them authorized in writing. The Patent Office shall give the other parties concerned an opportunity to take cognizance of the notice of appeal. | |
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| (3) Within 14 days from the issue date of the Journal referred to in the preceding paragraph, the Patent Office shall provide the person to whom a patent has been granted with a certificate of his right. | |
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| 29. Further rules for implementing the provisions of this Part and the following Parts shall be prescribed by Order in Council, which shall regulate inter alia: | |
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| (a) the requirements with which applications and their accompanying documents shall comply; | |
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| (c) the entry of applications in the registers of the Patent Office under Section 22; | |
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| (d) the name, the form and the manner of publishing the Journal referred to in Section 25; | |
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| (f) the form of the requests, notices of opposition and notices of appeal referred to in this Act of the Kingdom, the way in which the interested parties shall be notified thereof and the form of the certificate referred to inSection 28(3); | |
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| (h) the cases in which an entry shall be made in the public registers of the Patent Office of the filing or the laying open to public inspection of documents other than applications; | |
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| (i) copies of which documents laid open for public inspection together with the application shall be made available to the public. | |
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| Part III
The Maintenance of Secrecy in Respect of the Content of Patent Applications | |
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| (1) If the Patent Office is of the opinion that the maintenance of secrecy in respect of the content of a patent application may be in the interest of the defense of the Kingdom or its allies, the Patent Office shall notify the applicant thereof as soon as possible, but at the latest five months from the filing date of the application. Our Minister of Defense may give directions to the Patent Office with regard to the consideration of whether there is such an interest. | |
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| (2) At the same time as the notification is given, the Patent Office shall send a copy thereof and of the specification and drawings pertaining to the application to Our above-mentioned Minister. | |
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| (3) Our above-mentioned Minister may successively extend the term of suspension within six months preceding its expiry, for a period of three years by notifying the Patent Office that the content of the application is to be kept secret in the interest of the defense of the Kingdom or its allies. | |
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| (4) Our above-mentioned Minister may at any time notify the Patent Office that the content of the application need no longer be kept secret. Such a notification shall entail termination of the suspension. | |
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| (6) For as long as the suspension has not been terminated the Patent Office shall send Our above-mentioned Minister, at his request, copies of all the relevant documents exchanged between the Patent Office and the applicant. | |
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| (7) Nevertheless, the laying open to public inspection and the publication of the application shall not be effected, unless the applicant requests otherwise, until a period of three months has elapsed from the date of termination of the suspension. | |
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| (1) If an applicant requests that the content of a patent application be kept secret in the interest of the defense of some other country, or if the government of that country makes such a request, the Patent Office shall, provided that the applicant has stated in writing that he renounces any compensation for damages he might sustain by reason of the enforcement of this Section, send without delay a copy of that request and of the specification and drawings pertaining to the application as well as of the above-mentioned statement of renunciation to Our Minister of Defense. In such a case, the laying open to public inspection and the publication of the application shall be suspended. In the absence of a statement of renunciation, the Patent Office shall notify Our above-mentioned Minister thereof without delay. | |
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| (2) Within three months following the date of filing of the request, Our above-mentioned Minister may, provided that he has ascertained that secrecy has been imposed on the applicant by the country concerned and that the applicant was given permission by that country to file an application the subject matter of which has been made secret, notify the Patent Office that the content of the application is to be kept secret in the interest of the defense of that country. | |
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| (2) The State shall compensate the applicant for the use or the putting into practice of the subject matter of the application pursuant to paragraph (1). | |
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| 29F. If the State itself is the proprietor of a patent application and if Our Minister of Defense notifies the Patent Office that its content is to be kept secret in the interest of the defense of the Kingdom or its allies, the laying open to public inspection and the publication of the application shall be suspended until Our above-mentioned Minister notifies the Patent Office that the content of the application need no longer be kept secret. | |
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| (1) A European patent application whose applicant knows or should reasonably suppose that the content thereof is subject to secrecy in the interest of the defense of the Kingdom or of its allies shall be filed at the Patent Office. | |
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| (2) The Patent Office shall send without delay a copy of the specification and drawings pertaining to the application to Our Minister of Defense. | |
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| (3) Within a period not exceeding three weeks before expiration of the time limit referred to in Article 77(3) of the European Patent Convention, Our Minister of Defense shall notify the Patent Office whether the content of the application shall be subject to secrecy in the interest of the defense of the Kingdom or its allies. | |
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| Part IV
Conversion of European Patent Applications | |
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| (2) The converted application shall be deemed to have been filed at the Patent Office on the filing date attributed to it under Article 80 of the European Patent Convention in conformity with Articles 61 and 76 of the said Convention. | |
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| (2) The date of filing at the Patent Office, together with a serial number, shall be marked on the converted application. | |
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| Part V
International Applications | |
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| Chapter IIA
Provisions Governing European Patents | |
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| (1) In conformity with the provisions of this Act of the Kingdom, European patents shall have the same effect in the Netherlands and shall be governed by the same legal provisions as patents granted under this Act of the Kingdom from the date on which the mention of the grant is published in accordance with Article 97(4) of the European Patent Convention. | |
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| (2) The Patent Office shall, without delay, enter in the register referred to in the preceding paragraph any opposition filed to a European patent, stating the date of filing of the opposition and the decisions of the European Patent Office relative thereto. The Patent Office shall make notification thereof in the Journal referred to in the preceding paragraph. | |
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| (4) The European patent shall be deemed not to have had, ab initio, the effect referred to in Section 29M if: | |
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| (6) The preceding paragraph shall apply mutatis mutandis if the European patent has been amended during the opposition proceedings. | |
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| Chapter III
Legal Effects of the Patent | |
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| Part I
Rights and Obligations of the Proprietor of the Patent | |
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| (a) to make, use, put on the market or resell, hire out or deliver the patented product or deal in any other way, in or for his business, in the patented product or to offer, import or stock it for any of those purposes; | |
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| (b) to apply the patented process in or for his business or to use, put on the market, or resell, hire out, deliver the product obtained directly as a result of the application of the patented process, or deal in any other way, in or for his business, in the product or to offer, import or stock it for any of those purposes, with the exception of any product excluded from the grant of a patent as a result of Section 3(2). | |
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| (2) The sole right shall be determined by the contents of the claims of the patent specification, the description and the drawings serving to interpret those claims. | |
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| (3) The sole right shall not extend to acts exclusively done for experimental purposes relating to the subject matter of the patented invention, including the product obtained directly as a result of applying the patented process. | |
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| (4) If a product as referred to in paragraph (1)(a) or (b) has been put on the market lawfully in the Kingdom, or, where a European patent is concerned, in the Netherlands, the person who has obtained such product or the subsequent proprietor shall not contravene the patent by using, selling, hiring out or delivering the product or by dealing in any other way, in or for his business, in the product, or by offering, importing, or stocking it for any of those purposes. A product as specified in paragraph (1)(a) or (b) which was manufactured by a business prior to the date of publication, in accordance with Section 25, of the application that resulted in the grant of the patent, or, where a European patent is concerned, prior to the date of publication, in accordance with Article 97(4) of the European Patent Convention, of the mention of the grant of the European patent, may be used or continued to be used on behalf of that business, notwithstanding the patent. | |
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| (2) The retroactive effect of the revocation shall not effect: | |
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| (b) any contract concluded prior to the revocation to the extent that it has been performed prior to the revocation; on grounds of equity, repayment may be claimed of sums paid under the contract, to the extent justified by the circumstances. | |
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| 31. The sole right of the proprietor of the patent shall not extend to: | |
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| (a) the use, on board vessels of other countries, of the subject matter of his patented invention in the body of the vessel, in the machinery, the rigging, the tackle and other accessories thereof, when such vessels are in the waters of the Kingdom temporarily or accidentally, provided that the invention is used for the actual needs of the vessel only; | |
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| (b) the use of the subject matter of his patented invention in the construction or operation of aircraft or land vehicles or of the accessories of such aircraft or land vehicles belonging to other countries, when such aircraft or land vehicles are in the Kingdom temporarily or accidentally; | |
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| (c) acts specified in Article 27 of the Chicago Convention on International Civil Aviation of December 7, 1944, provided that those acts are relative to an aircraft of a State-other than the Kingdom-mentioned under (c) of that Article. | |
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| (1) Any person who has already made or applied or who has commenced to put into practice his intentions to make or apply, in or for his business, the subject matter of a patent application filed by somebody else, within the Kingdom or, where a European patent is concerned, in the Netherlands, on the filing date of that application or, if the applicant has a right of priority by virtue of Section 7(1) or Article 87 of the European Patent Convention, on the filing date of the application conferring the right of priority, notwithstanding the patent, shall continue to have the right to do the acts referred to in Section 30(1), this right being based on prior use, unless he has obtained his knowledge from matter already made or applied by the applicant or from the applicant’s descriptions, drawings or models. | |
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| (4) A request for a certificate as referred to in the preceding paragraph shall be made in a statement accompanied by the reasons therefor, shall give in a clear manner the name and residence of the person making the request and shall bear the signature of that person or of his representative authorized in writing. The representative, who shall satisfy the conditions to be prescribed by Order in Council for his admission as such, shall represent the person making the request in all matters concerning the request, subject to replacement or revocation. Where the person making the request is not domiciled in the Kingdom, he shall be obliged to elect domicile in the Netherlands with a representative. | |
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| (1) Our Minister of Economic Affairs may, if he considers it in the public interest, grant a license under a patent, the content of which shall be specified accurately by him, to a person designated by him. Before giving his decision Our Minister shall, unless this is not compatible with the speed required in the matter, ascertain whether the proprietor of the patent is willing to grant the license voluntarily and on reasonable terms. To this end, he shall give the proprietor of the patent an opportunity to express his sentiments on the matter in writing and, at his request, orally as well. The decision shall state the grounds on which it is based and shall be sent to the proprietor of the patent by registered letter. In his decision, Our Minister may impose upon the licensee the obligation to deposit security within a certain time limit. An appeal, lodged by the proprietor of the patent, shall lie from the decision to Us within a month after the dispatch of the decision. The appeal shall have suspensive effect, unless the decision of Our Minister provides otherwise in consequence of the speed required in the matter; if in the latter case the decision is revoked in whole or in part on appeal, the consequences thereof shall be provided for at the same time. | |
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| (2) Where neither the proprietor of a patent nor any other person who was granted a license has, in the Kingdom or in any other country to be designated by Order in Council of the Realm, after the expiration of three years from the grant of the patent, an industrial establishment in operation in which the product concerned is being made or the process concerned is being applied in good faith and on a sufficient scale, the proprietor of the patent shall be obliged to grant a license required for having such an establishment in operation, unless valid reasons are shown to exist for the absence of such an establishment. This obligation shall have effect for the proprietor of a European patent if after the expiration of three years from the date on which the mention of the grant of the European patent was published in accordance with Article 97(4) of the European Patent Convention, an industrial establishment as referred to above is not in operation in the Netherlands or in another country to be designated by Order in Council of the Realm. | |
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| (4) The proprietor of a patent shall be obliged at any time to grant a license required for the working of a patent granted in respect of an application which has the same or a later filing date or, where there is a right of priority attaching to the application, date of priority; the proprietor of the patent, however, shall only be obliged to grant a license required for the working of a European patent after the expiry of the time limit for filing an opposition to the European patent or after the opposition proceedings thus instituted have been terminated. Such a license shall not extend to anything beyond that which is necessary for the working of the patented invention of the licensee. The latter shall be obliged to grant a reciprocal license under his patent to the proprietor of the other patent. | |
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| (7) The decision of the Patent Office, to be contained in a statement accompanied by the reasons therefor, shall furnish a precise definition of the license granted, which definition may differ from the subject matter of the request. In the decision, the Patent Office may require the licensee to deposit security within a fixed time limit. A license granted under paragraph (2) shall be non-exclusive and may not be transferred, not even by means of the grant of sub-licenses, other than together with that part of the business in which the license is being worked. A license granted under paragraph (4), first or third sentence, shall not lapse where the patent for which the license has been granted has lapsed as a result of the expiry of the time limit referred to in Section 47 or where the patent has been revoked in whole or in part or has been claimed successfully. A reciprocal license granted pursuant to paragraph (4), last sentence, for a European patent shall not lapse if that patent has been revoked. | |
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| (9) After the grant of a license pursuant to the preceding paragraphs, the parties concerned may request the Patent Office in writing to fix the amount of remuneration payable to the proprietor of the patent. The Patent Office shall comply with that request. The decision of the Patent Office shall be binding on the parties concerned. Where the parties do not address such a request to the Patent Office and where they cannot settle the amount of remuneration by agreement, the remuneration shall, upon a suit instituted by the most diligent party, be fixed by the court, which may impose upon the licensee the obligation to deposit security within a specified time limit or which may confirm or amend the security fixed pursuant to the provisions of paragraph (1) or (7). | |
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| (a) a decision of the Arbitration Committee as referred to in Article 20 of the Treaty establishing the European Atomic Energy Community (EURATOM); | |
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| (b) a decision of the Patent Office pursuant to Article 21 of the above-mentioned Treaty. | |
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| (3) In respect of a decision as referred to in paragraph (1)(b), Section 34(5), first, fourth and fifth sentences, (6), first, second and last sentences, (7) and (8), first, second and third sentences, shall apply mutatis mutandis. In respect of a license granted by virtue of such a decision, Section 34(8), fourth sentence, and (9), last sentence, shall apply mutatis mutandis. | |
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| (3) The payments shall be made to the Industrial Property Office. Payment before the due date shall be permitted. | |
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| (4) For payments after the due date additional fees shall be due, the amount of which shall be prescribed by Order in Council of the Realm. | |
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| Part II
The Patent as an Object of Property | |
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| (2) They shall be deemed to be personal property, subject to the special provisions of this Act of the Kingdom. | |
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| (3) The assignment and other transfer of the patent or of the right arising from the patent application may be the subject of an entry in the registers of the Patent Office. For the making of such an entry, a fee shall be payable to be prescribed by Order in Council of the Realm. | |
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| (1) An assignment of the patent, as well as of the right arising from the patent application, shall be effected by means of an instrument containing a declaration of the proprietor of the patent that he assigns the patent or the right arising from the patent application to the assignee and a declaration of the assignee that he accepts the assignment. | |
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| (2) Any reservation relating to the assignment must be defined in the instrument; in the absence of any such reservation, the assignment shall be deemed to be unrestricted. | |
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| (3) The assignment shall take effect vis-à-vis third parties only after an entry has been made in respect of the instrument in the relative register of the Patent Office. Both parties shall have an equal right to have the entry made in the register. | |
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| (1) Where several persons are jointly entitled to the patent, their interrelationship shall be governed by that which has been fixed by agreement among themselves. | |
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| (1) A lien on a patent shall be established by a deed entered in the public registers of the Patent Office. It shall only be valid if the amount for which it was granted is mentioned in the deed and it shall continue to have effect even where the patent is alienated. | |
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| (2) The lienor shall be required, by means of a declaration bearing his signature to be sent to the Patent Office for registration, to elect domicile in The Hague. If domicile has not been elected in this way, the Industrial Property Office shall be deemed to be the elected domicile. | |
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| (3) Stipulations of the lien concerning the granting of licenses after registration shall take effect, vis-à-vis third parties as well, from their date of entry in the public registers of the Patent Office. Stipulations concerning remuneration for licenses granted prior to registration shall take effect vis-à-vis the licensee after a writ has been served on him. | |
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| (4) An entry shall be made in the public registers of the Patent Office of deeds from which it appears that the lien has ceased to exist or has ceased to have effect. | |
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| (1) In the case of the attachment of a patent, the records of the attachment shall be entered in the public registers of the Patent Office. | |
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| (2) When the entry has been made, the proprietor of the patent against whom the attachment was levied shall not alienate or encumber the patent so attached or grant licenses under it; rights established after the entry has been made shall not be invoked against the person levying the attachment. License fees not paid prior to the making of the entry shall be included by right in the attachment after a writ has been served on the licensee. Those fees-in case the attachment serves the preservation of a right, after the court has confirmed the attachment by a final judgment-shall be payable, together with the selling price of the patent, to the person levying the attachment for apportionment to the creditors in order of precedence. | |
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| (3) Upon discontinuation of the attachment, the title furnishing proof of such discontinuation shall be entered in the public registers of the Patent Office. Where the attachment serves the preservation of a right, Sections 770e to 770g of the Netherlands Code of Civil Procedure shall apply, it being understood that the provisions of Section 770g in respect of the Recorder of Mortgages shall apply to the Patent Office. | |
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| (1) The sale of a patent given in lien or of a patent on which attachment has been levied shall be effected publicly before a notary public. | |
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| (2) The creditor who institutes proceedings for the sale must serve notice of the date of the sale at least 30 days before that date to all the lienors or judgment creditors then registered at their elected domicile. | |
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| (3) The title furnishing proof of the sale shall be entered in the public registers of the Patent Office. | |
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| Part III
Enforcement of the Patent | |
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| (1) The proprietor of a patent may enforce his patent vis-à-vis any person who, without being entitled to do so, performs any of the acts referred to in Section 30(1). | |
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| (2) Damages may be claimed only from a person who performs such acts being aware that he has no right to do so. In any event, a person shall be deemed to have been so aware if the infringement was committed after the expiry of 30 days following the service of a writ indicating the acts done in contravention of the patent. | |
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| (3) In lieu of a claim for damages, the proprietor of a patent may claim that the defendant be ordered to surrender the profits derived by him from the infringement and to give an accounting of such profits; if the court determines, however, that the circumstances of the case do not justify the making of such an order, it may order the defendant to pay damages. | |
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| (4) The proprietor of a patent may institute actions for damages or for the surrendering of profits on behalf of himself, licensees or lienors, or on behalf of licensees or lienors only, without prejudice to the right of the latter parties to intervene in the action brought by the proprietor of the patent, whether or not brought exclusively or also on their behalf, in order to obtain direct indemnification for their losses or in order to be awarded a proportional share of the profits to be surrendered by the defendant. Independent actions may only be brought by licensees and lienors, and writs as referred to in paragraph (2) may only be caused to be served with a view to such actions, if the proprietor of the patent has granted the entitlement to do so. | |
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| (2) If the offender commits the offense within a period of less than five years from the date on which a former conviction for a similar offense became final, the maximum penal sanctions referred to in the preceding paragraph shall be doubled. | |
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| (3) On conviction of the offender, the court may order that its judgment be made public. | |
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| (4) Where objects have been declared forfeit, the persons entitled to the patent may demand that those objects be surrendered to them by filing a request to that effect with the Clerk of the Court within eight days from the date on which the judgment has become final. | |
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| (5) The penal offenses referred to in this Section shall be deemed to be misdemeanors. | |
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| (1) Any person who applies words or symbols to any goods in such a way as to represent falsely either that protection has been granted or applied for in respect of those goods or that protection under this Act of the Kingdom has been granted or applied for shall be liable to detention for a term not exceeding three months or to a fine not exceeding 1,500 guilders. | |
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| (2) Any person who sells, offers to sell, delivers, stocks for sale in the Kingdom or imports into the Kingdom any goods to which words or symbols have been applied in such a way as to represent falsely either that protection has been granted or applied for in respect of those goods or that protection under this Act of the Kingdom has been granted or applied for shall be liable to the same penal sanctions as those specified in the preceding paragraph. | |
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| Chapter IV
Term of the Patent.
Claiming the Right to the Patent | |
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| 47. The patent shall remain in force until the end of a period of 20 years beginning on the date of the filing of the application that has resulted in the grant of the patent, subject to the provisions laid down in the Sections below. | |
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| (1) A patent shall lapse if the proprietor of the patent surrenders it. | |
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| (1) A patent shall be annulled insofar as: | |
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| (b) the patent specification does not contain a description of the invention which is so clear and complete that an expert can work this invention; | |
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| (c) the subject matter of the patent is not covered by the content of the filed patent application or by the content of the original patent application if the patent has been granted on a divisional application or on a new European patent application filed pursuant to Article 61 of the European Patent Convention; | |
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| (d) after the publication or after the grant of the patent, extension of the scope of the protection has occurred; or | |
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| (4) The writ shall be entered in the public registers of the Patent Office within eight days from its date of issue. Where the entry is not made in due time, the person who instituted the proceedings is obliged to pay compensation for damages sustained by any persons who acquired, in good faith, after expiry of the time limit and prior to the making of the entry, rights affected by the annulment. | |
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| (6) The retroactive effect of the annulment shall not affect: | |
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| (b) any contract concluded prior to the annulment insofar as it has been performed prior to the annulment; on grounds of equity repayment may be claimed of sums paid under the contract to the extent justified by the circumstances. | |
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| (9) As soon as a final decision in annulment proceedings has become definitive or the proceedings have lapsed, an entry to this effect shall be made in the public registers of the Patent Office at the request of the most diligent party. A final and definitive annulment shall be notified in the Journal referred to in Section 25. | |
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| (1) Where a patent granted under this Act of the Kingdom relates to an invention in respect of which a European patent has been granted to the same inventor or his successor in title, and where the filing dates or, as the case may be, the priority dates of the patent applications concerned are the same, the former patent, insofar as it protects the same invention as the European patent, shall not continue to have the effects specified in Sections 30, 43A, and44A in the Netherlands as from the date on which: | |
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| (a) the time limit prescribed for giving notice of opposition to the European patent has expired without notice of opposition having been given; | |
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| (b) the opposition procedure has been concluded, with the result being that the European patent has been maintained; or | |
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| (c) the patent has been granted under this Act of the Kingdom, if that date is subsequent to the date referred to under (a) or (b), as the case may be. | |
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| (2) Invalidation in any way of the European patent at a later date shall not affect the provisions of the preceding paragraph. | |
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| (2) The writ with regard thereto shall be entered in the public registers of the Patent Office. | |
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| (3) The proprietor of a patent who acted in good faith when filing his application or who obtained the patent in good faith from a previous proprietor, prior to the date on which the writ was registered, shall continue vis-à-vis the new proprietor to have the right to work the invention in the manner specified in Section 32. | |
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| (4) Licenses obtained in good faith prior to the registration date shall continue to have effect vis-à-vis the new proprietor of the patent; the latter shall be entitled to compensation payable for licenses pursuant to the provisions of Section 33(3). | |
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| (6) Liens established by a previous proprietor of the patent shall only have effect vis-à-vis the new proprietor of the patent if they have been acquired in good faith and were established before the date on which the writ was registered. They shall have no effect vis-à-vis the new proprietor in the case referred to in the preceding paragraph. | |
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| (7) The action referred to in this Section shall be statute-barred at the expiration of a period of five years from the date on which the patent was granted or, where a European patent is concerned, from the date on which, pursuant to Article 97(4) of the European Patent Convention, the mention of the grant of the European patent was published; nevertheless, any person who knew or ought to have known when the patent was obtained that he or the person who assigned the patent to him was not entitled to the patent may not invoke such statute of limitation. Section 2013 of the Netherlands Civil Code shall apply to this limitation. | |
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| (8) As soon as a final decision in respect of an action claiming a right has become definitive or the proceedings have lapsed, an entry to this effect shall be made in the public registers of the Patent Office at the request of the most diligent party. | |
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| Chapter V
Court Proceedings in Respect of Disputes Relating to Patents | |
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| (3) With regard to all other matters, the ordinary provisions governing the administration of justice in force in the Netherlands shall apply. | |
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| (1) Any person who has requested the Patent Office to make an entry in a register of a document, provided it is not a patent application, may, if entry in the register is refused, address himself, by filing a request, to the Court referred to in the preceding Section. Any person who feels aggrieved as a result of the making of an entry in a register of a document, provided it is not a patent application, may also so act. | |
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| (2) The court may, upon hearing the person who filed the request, the President of the Patent Office or his representative and, where the court deems it necessary, other interested persons, order an entry to be made or, in the latter case, pronounce that the entry shall have no effect in whole or in part, which pronouncement shall be notified in the register. | |
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| (3) Subpoenas summoning parties to appear shall be served by registered letter upon the persons designated by the court. The persons so summoned may cause themselves to be represented by a special representative, but the court may direct such persons to appear in person. The opinion of each of the persons who have appeared shall be notified in the records. In the event of the non-appearance of any or even all of the persons summoned, the court may render a judgment without a hearing. | |
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| (4) The person who made the request, the President of the Patent Office and the interested persons summoned may lodge an appeal within 14 days from the date on which the judgment was given. The appeal may be lodged immediately. | |
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| (1) All disputes other than those specified in the two preceding Sections shall be brought before the court which has jurisdiction under the general rules governing the administration of justice. | |
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| (4) The court may stay proceedings relating to a dispute in respect of a European patent, with or without prescribing a time limit, where notice has been given to the European Patent Office of opposition to that patent by virtue of Article 99 of the European Patent Convention. | |
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| (1) The Patent Office shall be required to provide the court with all the information and technical advice the court may require to reach a decision in respect of patent proceedings brought before it. | |
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| (2) The advice provided by the Patent Office pursuant to the preceding paragraph shall have the same effect as advice given by experts, as referred to in Sections 222 to 236 of the Netherlands Code of Civil Procedure, has in the Netherlands. | |
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| 57A. A separate copy of all patent law judgments pronounced by a court shall be sent free of charge within one month by the Clerk of the Court which has rendered the judgment to the Patent Office and, where a European patent is concerned, to the European Patent Office referred to in the European Patent Convention. | |
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| Chapter VI
Special Provisions for the Netherlands Antilles and Aruba | |
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| 58. An Industrial Property Bureau may be established in the Netherlands Antilles and in Aruba. These Bureaus shall be institutions of those countries. | |
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| (1) Patent applications may be filed by applicants having their residence in the Netherlands Antilles or Aruba at the Industrial Property Bureau established there. | |
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| (2) The date of filing at the Bureau concerned shall be considered to be the date of filing at the Patent Office. | |
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| (1) The Bureau concerned shall send the application together with the relevant specification, drawings and models, annexing a copy of the receipt issued therefor, without delay following registration to the Patent Office, unless it appears to the said Bureau that any of the documents does not comply with the formal requirements prescribed by law. | |
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| (2) In the latter case the alleged deficiencies in the application shall be notified in writing to the applicant by the Bureau concerned, which shall invite the applicant to remedy the deficiencies or supplement the application within such a period as the said Bureau shall specify. Upon expiration of that period the documents filed by the applicant, together with a copy of the receipt issued to him, shall be forwarded without delay by the Bureau to the Patent Office, irrespective of whether or not the above-mentioned invitation has been complied with. | |
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| 62. The Patent Office shall upon receipt of the application enter it in a register under a consecutive number. | |
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| (1) Any person having his residence in the Netherlands Antilles or Aruba may file requests, notices of opposition and notices of appeal under this Act of the Kingdom at the Industrial Property Bureau established there. | |
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| (2) That Bureau shall, without delay, give telegraphic notice of the filing of a request, notice of opposition or notice of appeal to the Patent Office and shall forward the document that has been filed to the Patent Office. | |
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| Chapter VII
Provisions in Respect of Entry into Force and Final Provisions | |
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| (1) This Act of the Kingdom shall have binding effect for the whole Kingdom. | |
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| (2) It shall be cited as the “Patents Act of the Kingdom.” | |
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| 71. The decision to repeal the common regulation provided for by this Act of the Kingdom may be proclaimed in the Netherlands by means of an Act and in the Netherlands Antilles and Aruba by means of a national enactment. As from the third calendar year following the year in which such an Act or enactment is promulgated, this Act of the Kingdom shall acquire the status of a statutory instrument in the Netherlands and as a national enactment in the Netherlands Antilles and Aruba. |
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