Disputes & Advice: Legal Advice

If a party still accuses you of patent infringement, there are often other means by which a dispute can be resolved instead of taking the case to court. Many issues could already be resolved by consulting the patent owner. It might be possible to obtain a licence or to avoid infringement by making a minor adjustment to your product or process.

Validity of patents

There is one question that keeps recurring in discussions regarding infringement, namely, was the patent rightfully granted? If this is not the case, the judge can declare the patent void. Netherlands Patent Office, a department of the Netherlands Enterprise Agency, can be consulted in this regard. There are two situations in which the advice of our office could play a role:

• You doubt the validity of someone else's patent, but you are not (yet) considering legal proceedings.
• You have decided to start legal proceedings yourself or a patent owner has accused you of infringement.

Patent Act 1995

The advisory authority of our office is laid down in the Patent Act 1995. Anyone (except the patent owner) may apply for advice with regard to the validity of a Dutch patent that has been granted for an application filed after 1 April 1995. We take account of both the arguments of the requesting party and those of the patentee in supplying its advice. This advice in relation to nullification is required in the event of nullification proceedings in court.

Are patents always examined?

Most patents are only granted once they have been examined against the criteria of novelty, the inventive step and industrial application. There are exceptions, however. European patents and patents in the Netherlands granted prior to 1995 were always examined. The Patent Act 1995 brought some changes. Since 2006, our office provides the 'written opinion' that gives an indication of the novelty and inventive step.

Costs

The fee for an advisory report concerning the applicability of the grounds for nullification for a patent is € 340.