You can protect an invention in the Netherlands through three routes: a Dutch patent (octrooi) from the Netherlands Patent Office, a European patent from the European Patent Office (EPO), or an international PCT application that postpones the choice of countries. Whichever route you choose, the invention must be new on the filing date, and in Europe even your own earlier pitch, post or trade-fair demonstration can destroy that novelty.
A patent gives you the exclusive right to exploit a technical invention for a maximum of 20 years from the filing date (Article 36 of the Dutch Patents Act 1995, Rijksoctrooiwet 1995 or ROW). This page explains the requirements, the routes, the Dutch procedure and its deadlines, the official fees and what you can do against infringers.
Зміст
Which routes to a patent are there?
There are three: a Dutch patent, a European patent (classic or with unitary effect) and an international PCT application. Your choice depends on where your market is, your budget and your timeline.
What is a Dutch patent?
A Dutch patent is granted by the Netherlands Patent Office (Octrooicentrum Nederland), part of the Netherlands Enterprise Agency (RVO), and protects the invention in the Netherlands only. The office carries out a search into the state of the art, but a negative search result does not stop the grant: under Article 36 ROW the patent is granted once the application has been entered in the patent register.
That makes the Dutch patent fast and inexpensive, but it places the risk on you. A patent that is not new or not inventive can still be revoked by the District Court of The Hague. A bill to introduce substantive examination before grant is being prepared, but it has not been adopted and no date of entry into force has been set. Until then, the registration system applies.
What is a European patent?
A European patent is granted by the EPO in Munich under the European Patent Convention (EPC) after a substantive examination of novelty, inventive step and industrial application. The procedure often takes several years. After grant, you validate the patent in the EPC countries where you want protection; under Article 63 EPC it runs for 20 years from the filing date.
Since 1 June 2023 you can also ask for a European patent with unitary effect. With one registration you obtain protection in all participating EU member states, including the Netherlands, Germany and France, and infringement and revocation cases go to the Unified Patent Court (UPC). The more of those countries you need, the more attractive the unitary patent usually becomes compared with validating country by country.
What if you hold both a Dutch and a European patent?
Double protection is limited. Under Article 77 ROW, a Dutch patent loses its effect, to the extent it protects the same invention as a European patent granted to the same inventor with the same filing or priority date, once the opposition period for the European patent has expired or the opposition has ended with the patent maintained.
If the European patent is later revoked, the Dutch patent does not automatically revive. Discuss with your patent attorney whether it makes sense to pursue both.
What is the international PCT route?
A PCT application under the Patent Cooperation Treaty is not a world patent. It lets you postpone the choice of countries, and most of the costs, until 30 months after the priority date (Article 22 PCT); after that you continue the application in each country where you want protection.
A common strategy for SMEs is to start with a Dutch application, which secures your priority date. Within the 12-month priority period (Article 9 ROW, Article 87 EPC) you then file a PCT or European application claiming that priority. This gives you time to test the market and find investors before the large foreign costs arise.
When is an invention patentable?
Only if it meets three cumulative requirements: it is new, it involves an inventive step and it is capable of industrial application (Article 2 ROW; the EPC applies the same tests). If it fails one of them, the patent can be revoked.
When is an invention new?
Under Article 4 ROW, an invention is new if it is not part of the state of the art: everything made available to the public before the filing date, in writing, orally, by use or in any other way, anywhere in the world. Europe has no general grace period for your own disclosures.
This is the most common mistake. A prototype shown at a trade fair, a photo on LinkedIn or a talk at a conference before you file is enough to make a valid patent impossible. Before filing, share technical details only under a written non-disclosure agreement (NDA).
What is an inventive step?
Under Article 6 ROW, the invention must not follow in an obvious way from the state of the art for a person skilled in the field. Courts and the EPO usually ask which technical problem the invention solves and whether a skilled person would have arrived at the solution without inventive effort.
Under Article 75 ROW the court revokes a patent to the extent that it does not meet these requirements. A narrow but genuinely inventive claim is therefore often stronger than a broad claim close to the existing technology.
When is an invention industrially applicable?
Under Article 7 ROW, the subject matter must be capable of being made or used in some kind of industry, agriculture included. A purely theoretical concept or a machine that cannot work physically does not meet this requirement.
What cannot be patented?
Article 2(2) ROW excludes discoveries, scientific theories, mathematical methods, aesthetic creations, business methods, presentations of information and computer programs, but only “as such”. Article 3 ROW adds further exclusions, such as plant and animal varieties and inventions whose commercial exploitation would be contrary to public order.
Software that produces a technical effect, for example by controlling a braking system or improving image processing in a medical scanner, can be patentable. The technical contribution is decisive. The code itself is protected by copyright.
Who owns an invention made by an employee?
Under Article 12 ROW, the employer is entitled to the patent if the nature of the job requires the employee to use his special knowledge to make inventions of that kind. Otherwise the right belongs to the employee.
Check the employment contract and any IP clause, and make written arrangements before development starts. The same applies to freelancers and development partners, to whom the employer rule of Article 12 ROW does not apply.
How does the Dutch procedure work, step by step?
You search, keep the invention confidential, file, request the search within 13 months, and the application is published and granted after about 18 months. The deadlines are strict: missing one can end your application.
Step 1: search the state of the art
Before you spend money, check whether your idea is really new in free databases such as Espacenet, the EPO’s patent database. If you find the same or a very similar invention, you save the costs of an application that would not hold up.
Step 2: keep the invention confidential
Until the filing date, every public disclosure counts against you under Article 4 ROW. Once the application is filed, your filing date is secured and later publications no longer affect its novelty. If you need a manufacturer or investor before filing, use an NDA.
Step 3: file the application
You file with the Netherlands Patent Office. The filing fee is €80 online or €120 on paper (Article 6 of the Implementing Decree to the Patents Act 1995, Uitvoeringsbesluit Rijksoctrooiwet 1995).
The core of the application is the patent specification: the description, any drawings and the claims. The claims define the scope of your exclusive right. Claims that are too broad risk revocation; claims that are too narrow are easy to design around. Have them drafted by a registered patent attorney (octrooigemachtigde).
Step 4: request the search within 13 months
Under Article 32 ROW you must request a search into the state of the art within 13 months of the filing date or, if you claim priority, the first priority date. A national search costs €100; a search of international type costs €794.
If you do not request and pay for the search in time, the application lapses. Restoration (herstel in de vorige toestand) under Article 23 ROW is only possible if you show that you took all the care the circumstances required, and the request must be filed within two months after the cause of the delay has been removed, and no later than one year after the missed deadline; the fee is €161. In practice this test is applied strictly.
Step 5: publication and grant
Under Article 31 ROW the application is entered in the patent register and made public as soon as possible after 18 months from filing or priority. Under Article 36 ROW the patent is granted at registration, but not earlier than two months after the search result has been sent, regardless of what the search found.
From registration onwards you can claim reasonable compensation from anyone who used the invention before grant (Article 71 ROW). Read the search report carefully with your patent attorney before you rely on the patent in negotiations or proceedings.
Step 6: pay the annual fees
Under Article 61 ROW, annual maintenance fees are due from the start of the fourth year after filing. They rise from €40 in year four to €1,400 in year twenty.
If you pay after the due date, a 50% surcharge applies. Under Article 62 ROW the patent lapses automatically if the fee is not paid within six calendar months of the due date. Set up a reminder system or let your patent attorney manage the fees.
What does a patent protect, and what can you do with it?
A patent protects what falls within its claims, read in the light of the description and drawings. Within that scope, Article 53 ROW lets you stop others from making, offering, selling, using, importing or stocking the patented product, or applying the patented process, without your consent.
The scope is determined from the perspective of a person skilled in the art. Dutch courts look for a balance between fair protection for the patent holder and reasonable legal certainty for competitors, so the wording of a claim is not the only factor.
What can you do against infringement?
Under Article 70 ROW you can enforce the patent against anyone who infringes it. For a Dutch patent, you must attach the result of the search to the writ of summons or present it at the summary proceedings hearing; otherwise the claim is inadmissible. The District Court of The Hague has exclusive jurisdiction in patent cases (Article 80 ROW). Remedies include:
- an injunction, also in summary proceedings (kort geding);
- damages or surrender of the profits the infringer made;
- recall and destruction of infringing products;
- information about suppliers, distribution channels and customers;
- an order to pay your reasonable and proportionate legal costs (Article 1019h of the Dutch Code of Civil Procedure).
The cost rule cuts both ways: if you lose, you usually pay a substantial part of the other side’s actual legal costs. Weigh that risk before you start.
Which defences does an alleged infringer have?
The most common defence is a counterclaim for revocation under Article 75 ROW, usually for lack of novelty or inventive step. Other defences are that the product falls outside the scope of protection, that the rights are exhausted, or that the defendant already used the invention in the Netherlands before your filing date (prior user right, Article 55 ROW).
How can a patent be challenged?
A Dutch patent, or the Dutch part of a European patent, can be revoked by the District Court of The Hague. A European patent can also be opposed centrally at the EPO within nine months of the publication of the grant (Article 99 EPC).
A party seeking revocation of a Dutch patent must attach an advisory opinion of the Netherlands Patent Office on the grounds of invalidity to its summons; otherwise the claim is inadmissible (Article 76 ROW). The fee for that opinion is €340. Judgments can be appealed to the Court of Appeal of The Hague and then to the Supreme Court (Hoge Raad). For patents with unitary effect, revocation actions go to the UPC.
What does a patent cost?
The official Dutch fees are modest: €80 for filing online, €100 or €794 for the search and €40 to €1,400 a year to maintain the patent. The main cost is the patent attorney’s work on the specification, and for European and foreign protection the EPO fees, translations and national validation and renewal fees.
The EPO offers fee reductions for certain applicants, such as micro-enterprises, individual inventors, universities and non-profit organisations; check the current conditions on the EPO website before filing. The R&D tax credit (WBSO) may be relevant for the research that led to the invention; that is a tax question for your tax adviser.
What should you check as an inventor or applicant?
- Has anything about the invention been made public before the filing date, by you or anyone else?
- Are NDAs in place with every manufacturer, investor or partner who has seen technical details?
- Who owns the invention: you, your employer under Article 12 ROW, or a development partner?
- Is the search requested within 13 months and is the 12-month priority deadline for foreign filings in your calendar?
- Are the annual fees from year four onwards scheduled, with the six-month grace period as a last resort only?
Що слід перевірити, якщо вас звинувачують у порушенні?
- Is the patent still in force, and have all annual fees been paid?
- Does your product or process actually fall within the claims, read as a skilled person would read them?
- Is there prior art that could support a revocation claim or an EPO opposition within nine months of grant?
- Did you use the invention in the Netherlands before the patent’s filing date (prior user right)?
- For a Dutch patent: has the holder obtained the search result it needs to enforce the patent?
What can we do for you with patents?
We advise on the legal side of patents and work alongside your patent attorney, who drafts the technical specification; see also our ІТ-юрист стр.
- We draft non-disclosure agreements for talks with manufacturers, investors and partners before you file.
- We review employment, freelance and R&D contracts for IP clauses and ownership of inventions.
- We draft and negotiate licence, transfer and co-development agreements for your patent.
- We send a cease-and-desist letter to an infringer or assess a letter you received.
- We conduct summary and merits proceedings before the District Court of The Hague, including revocation claims.
Резюме
- A patent protects a technical invention for up to 20 years from filing; it must be new, inventive and industrially applicable.
- A Dutch patent is granted regardless of the search result, but can be revoked by the District Court of The Hague.
- A European patent is examined by the EPO; since 1 June 2023 a unitary patent covers the participating EU member states in one go.
- A PCT application postpones the choice of countries until 30 months after priority; it is not a world patent.
- Keep the invention confidential until filing, request the Dutch search within 13 months and pay the annual fees on time.
Часті питання
What is the difference between an octrooi and a patent?
There is none. Octrooi is the Dutch legal term and patent the international one; both refer to the same exclusive right under the Patents Act 1995.
How long does it take to obtain a Dutch patent?
The application is published as soon as possible after 18 months from filing or priority (Article 31 ROW), and the patent is granted at that registration. A European patent takes longer because the EPO examines the invention on its merits.
Чи можу я запатентувати програмне забезпечення?
Not as such: Article 2 ROW excludes computer programs as such. Software that produces a technical effect, such as better control of a machine, can be patentable. The code itself is protected by copyright.
Do I need to keep my invention secret until the patent is granted?
No. Confidentiality matters until you file. Once the application is filed, your filing date is secured and later publications no longer affect its novelty under Article 4 ROW.
Єдиний патент чи класичний європейський патент?
With a classic European patent you validate and pay renewal fees per country. A unitary patent, available since 1 June 2023, covers all participating EU member states with one registration and one court, the Unified Patent Court. It becomes more attractive the more of those countries you need.
