Thursday, September 15, 2016 The Netherlands ratify unified patent court agreement

The Netherlands have deposited their instrument of ratification. This makes it the 11th country to do so.

This marks an important milestone since if we add the remaining required countries--the United Kingdom and Germany--we reach 13 ratified countries which is sufficient to start the unitary patent system.

The Dutch government adds that:

Germany is likely to follow shortly. In addition, also approval by the United Kingdom is required. What the exact consequences of the announced 'Brexit' are for when the agreement enters into force, is still unclear.

The latter point is of course the problem. Only if the United Kingdom were to ratify can the agreement enter into force. They are legally fully allowed to do so, but personally I consider it unlikely that they at present will want to take this step.

In all other scenarios, the entry into force will be delayed. Even if the United Kingdom ratifies now, it is unclear what should happen if they leave the EU, but try to stay in the unified patent agreement.

Photo "Tullips in the rain" by Cicely Miller via Flickr under a CC-By 2.0 license (no changes made).

Tuesday, July 14, 2015 Netherlands making plans for local division unified patent court

I've just heard that the Dutch government has decided to have a local division of the unified patent court in the Netherlands. 


About two months ago an Internet consultation was started on proposed revisions to the Dutch patent law. The revision of the patent law would be adopted together with ratification of the Agreement on a unified patent court by the Netherlands. The Internet consultation did not give any indication whether or not the Netherlands would have its own local division of the unified patent court. 

Until now, there seemed to be a real possibility that the Netherlands would not have its own court. This would mean that all unitary patent disputes involving Dutch companies would go to foreign courts. Moreover, in due course, after the transitory period all European patent disputes would be handled by the unified patent court. 


In an interview with the Dutch newspaper 'Financieele Dagblad' of June 1, 2015, Hoyng a leading Dutch patent litigator remarked about the lack of a Dutch local division

That is very disappointing. The Netherlands should be leading with a European patent court, especially now we are always boasting about innovation. Germany is already busy promoting its court. We are in danger of losing the battle.

However, it seems now that the Dutch government will have a local division after all. I think this is good news. Although any one of the divisions of the unified patent court can rule over infringement in the Netherlands (as long as jurisdiction rules are satisfied) it is still good if local companies, especially smaller companies, have easier access to a judge when there is local infringement.


Foto "court of justice" van Edwin van Buuringen verkregen via Flickr onder een CC-By 2.0 licentie  (foto is ongewijzigd).

Last Monday was the final day of the public consultation concerning the draft amendments of the Dutch national patent law. Quite a number of articles are amended or introduced to accommodate the unitary patent. Of we course we have also been looking at the proposal in the past weeks. On the whole the proposal looks solid and will make the Netherlands ready for adoption of the unitary patent.

Some of the interesting articles include the following:

Reestablishment

A new article 23a1 will allow reestablishment in case of the request for registration of unitary effect is denied. The deadline for filing this request is one month after publication of the mention of grant. The deadline for classic national validation is 3 months. So if your request for registration of unitary effect is denied, you may not have the opportunity for national validation anymore. This article allows you to get a Dutch patent in case your request for registration of unitary effect is denied and you missed the normal validation deadline.

One problem that I see with this article is that the delayed validation is not applicable while in Court. So if you challenge the denial in Court, you need to wait until the Court made its decision. Should that decision be negative, i.e., your request for registration is still denied, you can then apply for validation according to the new article. It is not possible to withdraw the Court case and validate earlier.

Protection in Curaçao and Sint-Maarten

A Dutch patent or a European patent validated in the Netherlands are also valid in Curaçao and Sint-Maarten. However, the unitary patent only applies to the European parts of the Netherlands. There is thus a loss of protection if one chooses for a unitary patent instead of a nationally validated patent. This has been implemented in a new article 50a which says that once the request for unitary effect has been registered, the patent is no longer in force in the European part of the Netherlands.

This has the interesting (and intentional) side-effect that even if unitary effect has been registered, one can still validate the European patent in the Netherlands. However, this Dutch validated patent will only be valid in the non-European part of the Netherlands, i.e., Curaçao and Sint-Maarten.

This means that if the loss of protection for these regions is a problem one can still validate for them, and obtain protection. Unfortunately the cost for this protection on top of the unitary patent is the same as a Dutch validation currently costs, i.e., the same renewal fees.

Pharmacy exception 

The agreement on a unified patent court includes the so-called pharmacy exception; the extemporaneous preparation by a pharmacy, for individual cases, of a medicine in accordance with a medical prescription is excepted from patent protection (Article 27(e) of the Agreement). This exception has been included in the Dutch patent law, and will thus also apply to non-unitary patents in the Netherlands. Interesting the phrase 'extemporaneous' has been translated as 'voor direct gebruik' (for immediate use). I'm not sure those two mean exactly the same thing. Then again, I'm not sure what extemporaneous really means either.

According to the official notes to the proposal (my translation):

The exemption applies, however, only if the preparation is for immediate use and is carried out in individual cases. This exception does not apply to producing for stock. In view of this the exemption will only apply in exceptional cases. The Dutch law is therefore in line with the Judiciary Treaty and the laws in the surrounding countries.

I have no idea about the law in the surrounding countries with respect to the pharmacy exception. I only found this Italian case. Apparently Italy also has an exception for the extemporaneous preparation by a pharmacy. The Italian court ruled that this allowed the preparation of a patented drug with a different dosage in view of a patient’s special needs. The preparation of a patented drug by the Italian pharmacists however did infringe. It will be interesting to see how the Dutch Court and/or the Unified Patent court will apply this exception.

The final proposal for amendments of the Dutch national patent law should be available before summer. 

Tuesday, May 05, 2015 Internet consultation started for Dutch unitary patent law

The Netherlands have started the ratification process of the Agreement on a Unified Patent Court. A draft proposal ratifying the agreement is online. The Netherlands have indicated that it wants to be part of the new European patent system from the start. At present, six countries have fully ratified the agreement (Austria, Belgium, Denmark, France, Malta, and Sweden)

In addition to ratifying the agreement also a proposal for amendment of the Dutch Patent act is presented. The proposed amendment brings the Patents Act 1995 in line with the substantive provisions of the agreement, and includes any other adjustments to ensure proper functioning of the European patent with unitary effect. This means that when the amendments and the ratification are done, the Dutch the legislature should be ready for the unitary patent.

Last Friday, May 1st, 2015 the Dutch government launched an Internet consultation for the proposed amendments to the Dutch Patent act.

The consultation period is three weeks, that is, until May 25, 2015. The consultation period has been shortened from the regular 4 weeks so that the bill may be presented for advice to the Raad van State (State Council) before summer. This advice is a required part of amending a law. 

The Internet consultation is online. All text is in Dutch. Should you want to send in a response the Ministry of Economic affairs asks you to make concrete text suggestions and to send in your response as early as possible.