Modernised Dutch Patents Act: From Rubber Stamp to Examination

A proposal for the modernisation of the Dutch Patent Act (Rijksoctrooiwet 1995) is currently under consideration by the Parliament. In this article, we briefly outline the most important implications for the Dutch life sciences sector and, in particular, for university spinouts.

Under the current Dutch Patent Act, a patent application will be granted without prior examination of the legal criteria. This means the threshold for applying for a Dutch patent is relatively low, but it also means the actual value of a Dutch patent is often uncertain. The proposal aims to reinforce the value of a patent by changing the application procedure: the legal criteria (novelty, inventive step and industrial applicability) will all be taken into account before a patent is granted. For spinouts this could mean that their (license on a) patent is more attractive for investors.

If a patent application does not meet the requirements, a report will be drawn up, and the applicant will be invited to respond to it, make amendments where necessary, and have the opportunity to address any objections.

One of the other notable changes concerns the enforcement rights of exclusive licensees. The proposal provides that an exclusive licensee may independently enforce the patent against infringers, without requiring the involvement of the licensor. This right does not exist under current legislation, although it is frequently included in licence agreements in practice. The right to act independently as an exclusive licensee against patent infringement provides sublicensees greater legal certainty and additional leverage when negotiating a licence agreement.

Reach out to us if you have further questions on what this proposal means for your patent strategy or license deal.