Patents Act gets ready to welcome applications in English

Existing system
Moving with the times

The Patents Act 1995 has been amended and the new version is expected to come into force during the first half of 2008. Among other things, the new act would allow patent applications, though not claims, to be submitted in English.

Existing system
Since 1995 a registration system, similar to the patent systems in Belgium and France, has been in force for obtaining patents in the Netherlands. The Netherlands Patent Office (NPO) grants patents without substantive examination – patents are granted on the application as drafted by the applicant regardless of whether the claimed invention is patentable. Under the present act, applicants can choose between a six-year patent (where no request for a search for prior art is made) and a 20-year patent (where the applicant requests a prior art search).

The European Patent Office (EPO) carries out prior art searches for Dutch patent applications filed with the NPO. As with the European and Patent Cooperation Treaty procedures, Dutch search reports are accompanied by a written opinion on the question of whether the invention claimed in the patent application is new and involves an inventive step with respect to the prior art cited in the search report. Although the written opinion is not binding, it is a useful tool for assessing the validity of the patent, both for the owners and for third parties.

Moving with the times
A recent survey revealed that the Dutch registration system is a valuable supplement to the European patent system and provides a good balance of speed, cost effectiveness and legal certainty. However, the evaluation also revealed that there is a need for increased legal certainty, reduced costs and improved patent awareness.

Consequently, the Patents Act has been amended. Senate approval is now expected in the first half of 2008, after which the amended act will enter into force. The two most important changes that would be introduced by the amended act are (i) the abolition of the six-year patent, and (ii) the acceptance of Dutch patent applications written in English, except for the claims.

An important complaint emerging from the evaluation of the present Patents Act was that the six-year patent leads to undesirable legal uncertainty for both patent owners and third parties. As NPO and EPO search reports are not available for six-year patents, neither patent owners nor third parties can obtain information about the novelty and inventive steps of such patents. This is generally felt to cause too much uncertainty and therefore six-year patents will be abolished. This means that under the amended Patents Act, a search will be carried out for all patent applications. The search report will be accompanied by a written opinion, in which the examiner explains the relevance of the documents cited in the search report. Approximately 18 months after the filing date, the NPO will grant the 20-year patent by entering the application in the Patent Register.

Even more significant than the abolition of six-year patents is the fact that the amended act will allow English as a filing language, except for claims. Thus, the NPO will accept Dutch patent applications in English, provided that the claims are written in or translated into Dutch.

This makes the Netherlands among the first countries in Europe to depart from having the national language as a requirement for national patents. Although the impact of this change remains to be seen, it could have major implications on the number of Dutch applications filed by foreign companies. Certainly, Dutch applicants and foreign companies will benefit from the reduction in translation costs.