Netherlands: Covid-19: Emergency Act temporarily amends Dutch Patents Act

Before the introduction of the Emergency Act, the Covid-19 pandemic may have affected companies that owned patents or were in the process of applying for a patent as they may have been compelled to cease certain activities or restricted in completing the administrative procedures necessary (pursuant to the Dutch Patent Act) to maintain or apply for a patent. An example of a possible undesirable consequence would have been the automatic lapse of a patent for a purely administrative procedure, such as the failure to submit a translation of the patent to the Dutch patent office within three months.

The Emergency Act provides for temporary provisions that amend the Patent Act in the following ways:

• First, the Director of the Dutch Patent Office will be granted the discretionary power to prolong (for a set period of time) any constructive time limits set by the Patent Act if such time limits cannot be met due to measures taken by companies in relation to the Covid-19 pandemic.
• Second, a patentee will no longer be charged an additional fee if they fail to pay the yearly maintenance fee for their patent in due time, if such payment was or is due between 1 April 2020 and 31 August 2020. It should be noted that the Emergency Act does not allow for a stay on the time limit on payment of the maintenance fee itself. However, as a patent will only lapse six months after the date of payment has passed, the patentee should have plenty of time to safeguard their patent rights.

On 7 July 2020, the Senate also passed the Emergency Act by means of formality. The Act will retroactively come into force on a date determined by royal decree, and will in principle expire on 1 September 2020, but may be extended for a period of two months.

A prior version of this post was originally published by the same authors in Practical Law – Life Sciences, August 2020 Issue (Thomson Reuters).