Inventions are primarily protected by patent rights.

Patent rights in the Netherlands are based on statutory law, although case law plays a role in interpreting and applying these statutes. Different types of patents are available, namely:

• Dutch national patents;
• European patents, validated in the Netherlands; and
• unitary patents.

Additionally, supplementary protection certificates (SPCs) can be granted to extend the exclusivity of certain pharmaceutical products beyond the expiration of a patent.

In addition to patents, the Dutch legal system also offers protection for trade secrets, which encompass confidential know-how and business information. However, as the focus of this article is on patents, they are not addressed further in this article.

The grant procedure for patent rights involves different steps, depending on the type of patent.

National Patents

The grant procedure for national patents in the Netherlands is primarily administrative. Once a patent application is filed with the Netherlands Patent Office, it is granted as long as the formal requirements for the application are met. This procedure does not involve a substantive examination of the patent’s validity.

• Novelty search: a novelty search is mandatory and must be requested no later than 13 months from the patent application date. The search result, along with a written opinion on the patent’s strength, is published, providing insight to the applicant and third parties.
• Processing time: the average time for processing a Dutch patent application, from filing to grant, is about 18 months.

A bill is currently pending that will significantly change the grant procedure, the most important changes being that the grant procedure will include a substantive examination of the patent’s validity and that a patent can be opposed within nine months after grant.

European Patents (With or Without Unitary Effect)

The European Patent Office (EPO) provides a centralised procedure for granting European patents, which includes several key steps.

• Examination of formal requirements: the EPO checks if the formal application requirements are met.
• Novelty search: the EPO conducts a search to assess the novelty of the invention.
• Publication: the application is published 18 months after filing, although early publication can be requested.
• Substantive examination: within six months after the novelty report is published (usually around two years after filing), the applicant can request a substantive examination. The EPO will then assess the validity of the patent.
• Third-party observations: third-party observations can be submitted after the publication of the European patent application and while the application is pending before the EPO.
• Opposition: after the patent is granted, third parties can oppose it within nine months after grant.

After the grant procedure, the patent holder has the option to validate the European patent in individual EPO member states , including one extension state (Bosnia and Herzegovina) and five validation states (Cambodia, Georgia, Morocco, Republic of Moldova and Tunisia). Alternatively, the holder can request a “unitary effect” for the patent, which grants direct effect in 18 EU member states, including the Netherlands.

Dutch National Patents

For a Dutch national patent, the grant procedure typically takes 18 months from the filing date. A patent is granted automatically if it meets all formal requirements, regardless of the results of the novelty search.

There is no requirement for representation to initiate the grant procedure. However, applicants often choose to engage a patent attorney for guidance through the process.

The average costs for a national patent grant procedure include:

• an application fee of EUR80 for digital submission or EUR120 for paper submission;
• a mandatory state-of-the-art examination, costing EUR100 for a national search or EUR794 for an international search; and
• patent attorney fees typically range between EUR5,000 and EUR10,000, among other things depending on the complexity of the invention.

European Patents

The European patent grant procedure usually takes about three to five years from the date the application is filed.

Applicants can in principle file the application without representation. Applicants who do not have their residence or principal place of business in an EPC contracting state must appoint a representative and act through them in all EPC proceedings other than in filing the European patent application, initiating the European phase of an international (PCT) application within the applicable time limit or paying fees. 

The average costs for a European patent grant procedure include the following.

• Filing and search fees: at least EUR1,655 (EUR1,805 if filed on paper).
• Total cost to grant: on average, EUR6,800 (EUR6,950 if filed on paper), though this can vary.
• Post-grant fees: renewal fees for each designated state and possible validation fees.
• Additional costs: fees for patent attorneys, varying depending, inter alia, on the invention’s complexity.

Unitary Patent

The unitary patent simplifies the application process, eliminating the need for separate validation in participating states. An application for a unitary patent will cost about EUR6,000.

The term of a patent right is 20 years from the filing date of the patent application. However, in practice, many patents do not remain in force for the entire 20-year period. A patent may expire earlier, for example, if maintenance fees are not paid or if the patent is invalidated through nullity proceedings.

Pharmaceutical and plant protection products can receive additional protection through an SPC for up to additional five years (or five and a half years if the pharmaceutical product has undergone a series of tests under the Paediatric Investigation Plan (PIP). See 1.6. Further Protection After Lapse of the Maximum Term for more information on SPCs.

Rights of Patent Owners

Patent owners are granted exclusive rights over their inventions, meaning they can prevent others from manufacturing, selling, or using their patented products or processes without permission. These rights allow patent holders to take action, such as seeking an injunction to stop unauthorised use or demanding compensation in the form of damages. Specifically, patent owners have the right to prohibit others from:

• manufacturing, offering for sale, distributing or using a patented product;
• applying a patented process or offering such a process for use, knowing that the process is patented; and
• selling or distributing products directly obtained using a patented process.

The rights and remedies of the patent owner are further detailed in Section 6.

Obligations of Patent Owners

Patent holders have to pay annual maintenance fees have to keep their patents in force.

For a Dutch national patent, the first payment is due three years after the application. Maintenance fees increase over the life of the patent. For example, the fee payable in the fourth year is EUR40 and the fee payable in the twentieth year is EUR1,400.

SPCs can extend the protection of a patent for medicinal and plant protection products in addition to the regular maximum protection term of 20 years. SPCs provide the same rights as those attached to the patent, with exceptions for stockpiling and manufacturing.

SPCs must be requested within six months of either marketing authorisation or the patent grant, if the authorisation was granted earlier. The application must be submitted to the Netherlands Patent Office, which will assess whether the application meets the conditions for obtaining a certificate, namely:

• the product is protected by a basic patent in force;
• there is a valid authorisation to place the product on the market;
• the product had not already been the subject of an SPC; and
• the authorisation is the first authorisation to place the product on the market.

The duration of the SPC is based on the period between the patent application and the first marketing authorisation in the EU, with a maximum extension of five years. SPCs can be extended for up to a further six months for products that have been subject to a PIP.

National Patents

There is no right for third parties to intervene during the grant procedure for a Dutch national patent.

European Patents

Third-party observations can be submitted to the EPO following the publication of a European patent application. These observations, which may address matters such as novelty, inventive step and patentability, must be submitted in English, French or German and should include reasons. They can be filed anonymously via the EPO’s online system. The EPO may take these observations into account during the examination process, and they are added to the application file.

National Patents

In the absence of a substantive examination, there are limited administrative procedures available. Office actions typically focus on the formal aspects of an application. Decisions made by the patent office regarding formal objections or reinstatement can initially be addressed directly to the Netherlands Patent Office. The subsequent decision from the Netherlands Patent Office can be appealed to the administrative court in The Hague.

European Patents

The refusal of the application for a European patent can be appealed to the EPO’s Board of Appeal within two months of the notification of the decision.

National Patents

Once a national patent has been granted, an annual renewal fee must be paid to the National Patent Office to maintain the patent in force. The proprietor begins to pay the annual fee prior to the beginning of the fourth year following the filing of the patent application. The annual fee increases during the life of the patent.

An annual fee may be paid no later than six months following the date of lapse. A fine is payable, however, namely 50% of the amount due. If the fees have not been paid during this six-month grace period, the patent lapses. It may only be restored in particularly exceptional circumstances. To restore the patent right, a request for restoration must be filed in writing with the Netherlands Patent Office within two months from the date that the missed deadline was discovered and no later than one year after the deadline has passed.

European Patents

To keep a European patent in force, renewal fees must be paid in each designated state where the patent has been validated. The amount of the renewal fee differs between states. In nearly all states, there is a six-month grace period after the due date to pay the renewal fees, subject to a surcharge.

For unitary patents, renewal fees are paid centrally to the EPO for all participating states.

National Patents

The patent owner can amend its national patent after it is granted by registration of a deed to that effect in the Dutch patent register. The amended claims must be covered by the original application and cannot provide broader protection than the claims the patent was granted for. If there are third parties with interests in the patent, such as licensees or pledge holders, the amendment will not be recorded unless they consent. A patentee may also amend its patent during litigation by submitting auxiliary requests during the court proceedings, however this option may be more limited depending on the specific court procedure (eg, allowing only a small number of auxiliary requests).

European Patents

Post-grant amendments of European patents can be made through a limitation procedure filed by the patent owner. Opposition takes precedence over a limitation procedure and during opposition the Opposition Division may maintain the patent in amended form. Amendments made after filing may not broaden the scope of the patent’s protection.

Additionally, a patentee may amend the national part of a European patent during litigation by submitting auxiliary requests during the proceedings. The same limitations may apply as for national patents.

Civil Enforcement

There are three ways of litigating patent infringement cases in the Netherlands.

• Preliminary injunction (PI) proceedings to obtain interim injunction relief. This type of proceedings typically takes two months from start to decision. Under certain circumstances, the Dutch court also grants cross-border infringement relief.
• Accelerated proceedings on the merits, which will take about 12 to 15 months until a decision is obtained.
• Regular proceedings on the merits, which take at least one and a half years to obtain a decision.

Customs

Patent enforcement can also be carried out through Dutch customs. Patentees may request Dutch Customs Authorities to detain or seize infringing goods at land, sea or air borders.

Criminal Proceedings

In addition, criminal court proceedings for grave cases of wilful patent infringement could be initiated by the public prosecutor. In practice, however, patent infringement in the Netherlands is seldomly addressed through criminal proceedings.

There are several remedies available for third parties to remove the effects of a patent.

Opposition Action

European patents can be opposed at the EPO within nine months after publication of the grant. There is no special legal interest required to file an opposition action.

No opposition proceedings can be filed against the grant of Dutch national patent. Instead, invalidation or revocation actions must be pursued directly through the District Court of The Hague.

Revocation/Invalidation Action

A third party can seek the revocation or invalidation of a Dutch national patent or the Dutch part of a European patent through a procedure on the merits at the District Court of The Hague. The revocation or invalidation of a unitary patent can be filed with a procedure at the UPC.

Before initiating a revocation or invalidation action against a Dutch national patent, the claimant must first obtain a patentability (nullity) opinion from the Netherlands Patent Office. This opinion must be submitted alongside the writ of summons or as part of a counterclaim in the invalidation proceedings.

In the Netherlands, proceedings are not bifurcated. This means that a counterclaim for revocation can be brought in pending infringement proceedings.

In principle, any party can file a revocation or invalidation action at the Dutch court. No special interest is required.

Action for a Compulsory Licence

A third party can request a compulsory licence from the Dutch court if the patent holder or a licensee has not used the patented invention within three years of the patent grant (or, for European patents, within three years of the publication date). The compulsory licence will not be granted if the patent owner can provide a valid reason for the lack of using the invention.

Additionally, a patent holder can request a compulsory licence from the Dutch court based on “dependency.” This occurs when a later patent cannot be used because it infringes on an earlier patent. In such cases, the holder of the later patent can seek a compulsory licence to use the earlier patented invention.

Declaration of Non-Infringement and “Arrow Declarations”

Parties can claim a declaration of non-infringement. The requirement for obtaining such declaratory relief is that the patent is invalid and/or not infringed.

An “Arrow” declaration (inspired by the UK “Arrow” case) is a claim made to confirm that a specific product or process would not have been patentable (eg, due to lack of novelty and/or lack of inventive step) at a particular point in time. The alleged infringer can seek an Arrow declaration to ensure that their product is either not covered by future patents or that any such patents would be invalid due to obviousness or lack of novelty.

A declaration of non-infringement and/or an “Arrow” declaration must be sought in proceedings on the merits. A legitimate interest is generally assumed to be present if the party seeking the declaration is able to demonstrate real threat of enforcement, eg, following a warning letter.

Patent-related proceedings are heard by the District Court of The Hague at first instance and the Court of Appeal of The Hague at second instance. The courts have exclusive jurisdiction over patent cases in the Netherlands. The proceedings are handled by a division with specialised patent judges, some possessing technical expertise.

Cassation proceedings are conducted before the Dutch Supreme Court, also located in The Hague. The Supreme Court only considers questions of law, not questions of fact.

A local division of the UPC is located in The Hague. Furthermore, the Netherlands Patent Office can provide non-binding advice with regard to the validity of a granted Dutch national patent.

In order to file an action for revocation of a national patent, the plaintiff must first obtain nullity advice from the Netherlands Patent Office. The nullity advice must be submitted to the District Court of The Hague in the revocation action, but it is not binding on the court.

There are no mandatory procedural prerequisites for filing a lawsuit related to the national part of European patents. Sending warning or notice letters to alleged infringers before filing a lawsuit is also not compulsory. However, it is recommended to send a notice or cease and desist letter before initiating infringement proceedings or, in the case of invalidity actions, to send a warning letter to the patentee, requesting them to withdraw the patent or confirm that they will not enforce it. Dutch case law has demonstrated that failing to send such letters may impact later cost orders.

Additionally, the writ of summons must be registered in the patent register within eight days of its issuance. While this is not a mandatory requirement for initiating the procedure, if the writ of summons is not registered within the specified period, the plaintiff may be required to compensate any damage suffered by third parties who, in good faith, acquire rights after the period has passed and before the registration.

Parties involved in intellectual property litigation are generally required to be represented by a lawyer. Patent attorneys have advocacy rights in court, with prejudice to the responsibility of the lawyer.

PIs are available in the Netherlands, either inter partes or ex parte.

In PI proceedings, the judge makes a prognosis of the outcome of the case on the merits. The standard to be applied in PI proceedings is that an injunction must be rejected if there is a reasonable (that is, a serious, non-negligible) chance that the claim will be rejected in proceedings on the merits.

There is an urgency requirement in PI proceedings. Generally, urgency is assumed if there is an ongoing infringement. However, sitting idle for extended periods of time may lead to loss of urgency. Loss of urgency is not always permanent in nature. Urgency may revive under certain circumstances, such as an increased scope of the infringement.

In extremely urgent cases, interim relief can be obtained on an ex parte basis, ie, without hearing the defendant (this rarely happens in practice). This would involve a written request to the court, providing all the relevant details of the patent and the dispute. The court generally decides on such requests within one or two days, and if granted an injunction with immediate effect can be obtained. It should however be noted that the court subsequently usually schedules a date for an inter partes hearing in the next four to eight days in case the defendant wants to challenge the decision.

A potential infringer of patent rights anticipating an ex parte injunction can file a protective letter with the District Court in The Hague, raising objections such as the invalidity of the patent right or non-infringement of the product in question.

In essence, protective letters are a pre-emptive statement of defence. While filing a protective letter does not guarantee that an ex parte injunction will not be issued, the provisions judge will consider both the patentee’s request and the arguments presented in the protective letter when making a decision. These letters are valid for six months, but may be renewed for additional six-month periods upon request to the court.

An infringement action must be initiated within 20 years from the date the infringement occurred; however, claims for damages must be filed within five years starting from the day after the patent owner became aware of the damages and the responsible party.

However, in the case of wilful patent infringement, the limitation period for damages may under certain circumstances be 12 years.

The Dutch legal system provides several mechanisms for obtaining information and evidence in intellectual property matters, both before and after formal proceedings have commenced. 

A party may request a court order to obtain specific documents or evidence held by another party, such as information, records or items related to the alleged infringement. To be granted permission, the requesting party must demonstrate a direct and concrete interest and clearly specify the documents or evidence sought, avoiding fishing expeditions. The requested materials must relate to a legal relationship involving the party, with patent infringement cases typically qualifying. The court will also weigh the interests of the party in its decision, such its interest in protecting confidential information and trade secrets.

Evidence can be obtained in different stages of the proceedings, as set out below.

• Incidental motion for disclosure: a party can request specific documents via an incidental motion. In regular proceedings, the court typically decides on disclosure early, allowing the claimant to use the documents in submissions and hearings. If the incidental motion is brought in accelerated proceedings on the merits, then the court will only decide on the claim after all written submissions have been filed and the hearing on the merits of the case has taken. Accelerated proceedings on the merits (contrary to regular proceedings on the merits) thus provide little to no room for obtaining evidence in advance of the hearing.
• Claim for disclosure in main action of the proceedings on the merits: disclosure of specific documents can also be claimed in the main action in the proceedings on the merits. The claimant could primarily claim an injunction and alternatively, if the court would not yet be convinced that there is an actual infringement but that there is a reasonable suspicion of infringement, disclosure of specific documents.
• Separate proceedings: other possibilities for obtaining evidence include a pre-action claim for disclosure of specific documents (whether or not preceded by an evidentiary seizure), preliminary expert reports and preliminary hearings of witnesses.

Under Dutch civil procedural law, a claimant has the obligation to present its case in full in its writ of summons, which means that all the facts including the evidence which substantiates those facts have to be presented at the start of the proceedings (“front loaded” system). For example, in infringement cases, the evidence must demonstrate that all claim features are met by the infringing product/process or at least there must be a reasonable suspicion. Depending on the defence, more evidence can be submitted at a later stage.

Most patent proceedings in the Netherlands are conducted under the “accelerated regime”. If the claimant wishes to be admitted to the accelerated proceedings regime, it must submit a draft summons with the court before serving the writ of summons on the defendant and request the court to create a schedule for the proceeding. The procedural rules applicable to the accelerated proceedings dictate that all arguments and exhibits must be submitted at the earliest possible moment. Arguments and exhibits submitted at a later stage may be disregarded by the court.

Class actions can be brought in the Netherlands, including in relation to patents. The Dutch class action system (WAMCA) allows representative organisations to file collective claims on behalf of affected individuals. To be admissible, the claimant organisation must be a non-profit foundation or association and sufficiently representative of the class. Additionally, strict statutory and governance requirements must be met to ensure proper representation. These requirements under WAMCA are designed to prevent a claim culture. Collective actions in IP cases remain generally uncommon.

The owner of a patent right may face restrictions when asserting their rights, including the following.

• The enforcement of patent rights must comply with competition laws, prohibiting unfair competition practices.
• Additionally, the enforcement of standard-essential patents (SEPs) may be subject to FRAND obligations, requiring patent holders to offer licences on fair, reasonable and non-discriminatory terms.
• In certain exceptional cases, enforcing a patent may be deemed an abuse of rights, such as when the sole purpose is to cause harm to another party.
• Furthermore, a national patent cannot be enforced if a European patent for the same invention has been granted for the Netherlands and has passed the opposition phase.

In principle, only the patentee (including co-patentees, unless agreed otherwise) can bring an infringement action before the Dutch court. Licensees need a specific litigation power of attorney from the patentee to seek an injunction or other remedies to stop the infringement. In December 2024, the Dutch government published an explanatory memorandum outlining proposed changes to modernise the Dutch Patent Act. While not yet in force, one of the expected changes is to grant licensees the authority to bring an infringement action before the Dutch court, unless otherwise agreed.

The patentee may claim damages on behalf of exclusive or non-exclusive licensees and pledgees. Licensees and pledgees may join an infringement action as co-plaintiffs for damages if the patentee commences the action. They may also bring an independent claim for damages against an alleged infringer, provided that they are authorised by the patentee to do so.

In the Netherlands, a patent owner can enforce its patent against direct and indirect infringement.

Direct Infringement

Direct infringement occurs when a third party performs any of the following acts, in the course of business, without the consent of the patent holder, within the territory of the Netherlands:

• manufacturing, offering for sale, marketing, or using a product that falls within the scope of the patent, or importing or stocking such products for these purposes;
• using a process that is covered by the patent or offering to use the process; and
• offering, marketing, using or importing a product obtained directly through a patented process.

Direct infringement requires that the infringing product or process implements all the features of the asserted patent claim, as outlined in the patent, including equivalents (also see 3.4 Scope of Protection for an Intellectual Property Right).

Indirect Infringement

Indirect infringement occurs when a third party supplies, without the patent holder’s consent, means for carrying out the patented invention. This includes providing essential components of the invention, as long as the third party knows or should know that these means are intended to be used for infringing the patent.

The territorial scope of the prohibition on indirect patent infringement is limited. Indirect infringement occurs when offering or supplying the means in the Netherlands, Curaçao or Sint Maarten for use of the invention in that territory. However, an offer from abroad directed at someone in these territories is also relevant.

However, this provision does not apply when the means are generally available in the market unless the third party encourages or induces the buyer or user to commit an act of direct infringement.

Infringement of process patents is subject to the same general rules as other types of patent infringement. Products made directly by a patented process enjoy the same protection as patented products.

If a product is made by a patented process outside the Dutch jurisdiction and this product is imported in the Netherlands, this could still constitute an infringement if the process used to make the product is protected by a Dutch patent.

A particular challenge in process patent cases could be the burden of proof, where in principle the patentee bears the burden of proving that the allegedly infringing product was directly obtained from a process protected by the claims of the patent. If the infringement concerns a patented process for the manufacture of a product which is itself new, the product in question is presumed to have been manufactured by the patented process, unless the defendant can plausibly prove that this is not the case.

The scope of protection of a patent is determined by its claims, in accordance with Article 69 of the European Patent Convention (EPC) and the Interpretation Protocol. The extent of protection conferred by the patent will thus be determined by the claims and the description and drawings shall be used to interpret the claims. The courts seek to balance fair protection for the patentee with legal certainty for third parties.

Literal Infringement

The scope of protection is assessed from the perspective of a person skilled in the art, using their general knowledge as of the priority date or the filing date. Courts interpret the claims with consideration of the description and drawings, aiming for fairness to both the patent holder and third parties. Whether a product or process falls within the scope of the patent, is assessed by determining how the person skilled in the art, using their common general knowledge, would have interpreted the claim(s) on the priority date.

Equivalent Infringement

The doctrine of equivalents allows protection beyond literal infringement. According to the Interpretation Protocol, “due account shall be taken of any element which is equivalent to an element specified in the claims.”

If the allegedly infringing product or process does not literally fall within the scope of the claims, but contains equivalent elements, it may also constitute infringement of the patent. 

In the 2020 Pemetrexed case, the Court of Appeal of The Hague outlined a four-step test to determine if an infringement falls under the scope of equivalents, which have been applied in several decisions since. The court will consider the following principles.

Technical equivalence

For infringement, the different feature must be technically equivalent to the claimed feature. Courts usually determine equivalence by applying the “function-way-result” test, assessing whether the element in the infringing embodiment essentially fulfils the same functions in essentially the same way with essentially the same results.

In pharmaceutical and chemical cases, the courts sometimes also use the “insubstantial differences” test, which assesses whether the person skilled in the art would consider the difference between the claim limitation and the alleged equivalent feature of the accused product to be insubstantial. However, this test is less common than the function-way-result test.

Fair protection for the patentee

The scope of protection should correspond to the contribution the patentee has made to the state of the art. It should be reasonable for the skilled person to consider applying equivalent elements in place of the claimed feature.

Reasonable legal certainty for third parties

Third parties should be able to rely on the content of the claims. If the claims are unclear, they may not be expected to consider equivalent elements.

Novelty and inventiveness of the equivalent

The alleged equivalent itself must be new and inventive. Otherwise, it would be possible to obtain protection for non-new or non-inventive products or processes.

The Supreme Court grants the lower courts considerable discretion in determining the scope of protection and equivalence. While the four criteria mentioned are useful for assessing equivalence, they are not mandatory. The approach may vary, and the outcome is often closely tied to the specific facts of the case.

Prosecution History

The prosecution history of a patent may be used in a defence against infringement to support a narrow claim construction, eg, when the patentee has narrowed the claims to overcome patentability concerns. However, courts should exercise caution using the prosecution history to broaden the scope of protection beyond the interpretation of the claims in light of the description and drawings, in order to maintain legal certainty for third parties.

The most common defences raised in infringement proceedings are non-infringement and invalidity of the asserted patent (by way of counterclaim in the infringement proceedings). So-called Gilette defences, where it is argued by the alleged infringer that it is merely applying the prior art, have also been honoured.

The defence of non-infringement can also be based on an exception in Dutch patent law, including acts done in the private sphere for non-commercial purposes, acts done for experimental purposes or acts falling under the “Bolar exception” – allowing the use of the patented invention for the sole purpose of obtaining regulatory approval for generics.

Other examples of defences to infringement are set out below.

• Procedural defences: the alleged infringer may raise procedural defences, such as contesting the plaintiff’s authority to institute proceedings, contesting the validity of the summons and the expiry of the limitation period.

• Prior use rights: Prior user rights allow parties who have used an invention before the filing or priority date of a patent to continue using it, even if the patent is granted to a third party. To claim these rights, the party must have already made or used the invention in its business before the critical date, and the use must be in good faith and not based on the patentee’s disclosure.

• Exhaustion: the patent owner’s exclusive rights are exhausted when products have been put on the market in the European Community or the European Economic Area by the patent owner or with the patent owner’s content. A party raising an exhaustion defence will thus need to prove that the patented product was put on this market by the patentee or that the putting on the market was done with the patentee’s consent.

• FRAND obligations: in the case of enforcement of SEPs, the alleged infringer may rely on alleged abuse of a dominant position and/or failure to comply with FRAND obligations.

In the Netherlands, experts may be appointed by the parties to patent proceedings. Although Dutch procedural law allows for court-appointed experts, either ex officio or at the request of the parties, this is rarely used in patent cases.

Usually the parties submit expert opinions, especially in complex cases. Experts serve to explain technical aspects related to the case and their input is focused on technical issues rather than legal analysis. There is no cross-examination of experts in Dutch patent proceedings, and although experts are generally present at hearings, they usually only provide clarification on technical points if requested by the court or one of the parties.

There is no separate procedure for interpreting the features of the patent claim(s); issues concerning patent validity, claim construction and infringement are addressed within the same proceedings.

The court has the discretion to order an expert report or to hear an independent expert on its own initiative. However, this discretion is rarely exercised in patent cases.

Revocation or cancellation actions against a patent can be filed independently or as a counterclaim in an infringement case.

In principle, anyone with a legitimate interest in the claim can initiate such proceedings. However, for revocation proceedings against a Dutch national patent, the claimant must obtain a patentability (nullity) opinion from the Netherlands Patent Office before filing the action.

The District Court of The Hague has the authority to revoke or cancel a Dutch national patent or the Dutch part of a European patent, either in full or in part, on the following grounds:

• the invention is not patentable (eg, mathematical methods);
• the invention does not meet the patentability requirements (lack of novelty, inventive step or industrial applicability);
• the patent does not provide a sufficiently clear and complete description of the invention to enable the person skilled in the art to carry out the invention;
• the claim(s) contain added subject matter; and
• the patent holder is not entitled to the patent.

The District Court of The Hague can revoke or cancel a Dutch national patent or the Dutch part of a European patent partially, in cases where only one or some claims of the patent are found to be invalid. This can happen if, for example, certain claims fail to meet the patentability criteria (novelty, inventive step, industrial applicability). The other claims elements of the patent remain valid.

A patentee may file one or more auxiliary request in revocation/cancellation proceedings, either in first instance or appeal, provided that they do not broaden the scope of protection. The request must be submitted as early as possible in the proceedings. The court may put limitations on the number of auxiliary requests.

Patent cases are not bifurcated. This means that infringement and validity are usually heard together.

Patent cases in the Netherlands fall under the exclusive jurisdiction of the District Court of The Hague. At the first instance, the chamber consists of ten to 12 experienced patent judges, and the proceedings are usually handled by a panel of three judges. Some of the judges have a technical background.

Typical Timeline

Regular proceedings on the merits usually take at least one and a half years to reach a decision.

However, most patent litigation in the Netherlands follows a special regime for accelerated proceedings on the merits. This offers a thorough review of the case within a relatively short timeframe. Before the proceedings begin, the court will issue an order with a procedural schedule, outlining filing deadlines for briefs and the hearing date. In accelerated proceedings, written submissions are limited to the following.

• Writ of summons.
• Statement of defence (with possible counterclaim for invalidity), to be submitted ten weeks after the first docket date mentioned in both the writ of summons and the procedural time schedule set by the court.
• (When applicable) statement of defence in the counterclaim proceedings, to be submitted eight weeks after the Statement of Defence.
• Additional exhibits, to be submitted eight weeks before the oral hearing and responses to these additional exhibits four weeks before the hearing.
• Pleading notes, to be submitted by both parties on the Monday before the hearing (that usually takes place on a Friday). Defendant in the main action can submit a brief written response to the patentee’s pleading notes on the Wednesday before the hearing.

The overall timeline for obtaining a decision in accelerated proceedings is typically 11 to 13 months.

Number of Hearings

There is typically only one oral hearing, though this may vary depending on the complexity of the case. Before the hearing, all legal arguments and evidence are submitted in writing.

Experts

While Dutch patent proceedings primarily focus on written submissions, experts may be heard during the oral hearing. Experts can be questioned by the court during the hearing to further elaborate on technical aspects of the case. Expert statements are usually filed in writing before the hearing.

Cross-Examination

There is no formal cross-examination in Dutch patent cases. While experts may be questioned by the judges during the oral hearing, the proceedings are generally less adversarial than those in common law jurisdictions. The questioning is typically focused on clarifying technical issues, rather than engaging in a back-and-forth challenge of witness credibility.

Remedies for Patent Infringement

The remedies for patent infringement, such as an injunction, are typically decided as part of the initial proceedings. However, decisions on damages may be addressed at a later stage in subsequent separate proceedings.

Dutch patent cases are handled exclusively by specialised patent judges at the District Court of The Hague, which has a dedicated chamber for intellectual property matters.

In first-instance and appeal patent proceedings on the merits, cases are heard by a panel of three judges. However, PI cases are typically heard by a single judge. The Supreme Court, in contrast, hears cases with a panel of either three or five judges. Before the Supreme Court issues its judgment, the advocate general will first present an opinion on the case.

All judges in the specialised chambers are experienced in patent law, and some also have a technical background or education. There is no jury system in the Netherlands; decisions are made solely by the panel of judges. The parties do not have any influence on the selection of individual judges, although they are informed of the panel composition in advance.

In the Netherlands, settlement discussions, including mediation, are optional. The court may encourage settlement, but it is not mandatory, and the decision remains with the parties.

If the parties wish to settle, they can request to stay the proceedings or discontinue the case. Discontinuation has no automatic legal consequences unless agreed upon by both parties.

If a settlement is reached during an oral hearing, the judge can prepare a written record, signed by both parties and the judge, which acts as an enforcement order.

There is no requirement to report the results of settlement discussions to the court. The content of these discussions remains confidential under the Dutch Bar Association’s Code of Conduct if lawyers were involved in the settlement discussions. While the existence of ongoing or finished settlement discussions can be shared with the court, disclosing the details without consent may lead to disciplinary action if lawyers were involved.

In Dutch patent proceedings, other pending cases, such as parallel revocation or infringement actions, can impact the ongoing proceedings.

Parallel Proceedings

The court has the discretion to stay proceedings if opposition or other relevant parallel proceedings are pending that could influence the outcome of the case, such as invalidity proceedings involving other parties or entitlement disputes. Typically, the courts are cautious about staying proceedings unless the decision hinges on the outcome of the EPO proceedings (eg, in cases with multiple auxiliary requests) or if a decision from the EPO is expected soon. However, the decision ultimately lies with the court’s discretion.

In cases of lis pendens under the Brussels I Recast, the court is required to stay the proceedings on its own initiative if it is not the court first seized. In such cases, the court has no discretion and must stay the proceedings.

If the patentee succeeds in a patent infringement action and the court finds that its patent rights have been infringed, the available remedies include the following.

Injunction

The most commonly awarded remedy in patent infringement cases is an injunction, typically requiring the defendant to cease infringing the patent, often subject to penalty payments for non-compliance. In certain cases, cross-border injunctions are awarded by the court.

Damages

Damages can also be awarded as remedy for patent infringement. The amount of damages is generally determined in separate proceedings, though they can also be assessed as part of the main case.

In the Netherlands, damages are compensatory, not punitive, meaning there is no provision for enhanced damages for wilful infringement.

The damages may be calculated using various methods, including:

• lost profits;
• reasonable royalties; and
• surrender of the infringer’s profits

Other Available Remedies

Other available remedies include:

• recall orders;
• orders for the surrender or destruction of infringing goods;
• orders requiring the infringer to publish the court’s judgment;
• orders for an accounting of profits gained through infringement; and
• orders for the reimbursement of litigation costs (such as legal fees, patent attorney fees and expert fees).

The court is limited to the remedies requested by the patentee in the proceedings and cannot grant remedies beyond those specified in the claim. As such, the judge has no discretion to independently determine remedies outside the scope of what the patentee has requested.

Enforcement of the Remedies

The general rule is that lodging an appeal suspends the enforcement of the first-instance decision. However, plaintiffs usually request that the court make its decision provisionally enforceable, meaning that the remedies can be executed immediately, even if an appeal is pending (see 6.4 Injunctions Pending Appeal). Such request will in principle be granted.

The prevailing defendant will in principle be entitled for reimbursement of the costs incurred in the proceedings (see 8.3 Responsibility for Paying the Costs of Litigation).

The remedies as listed in 6.1 Remedies for the Patentee are available to patent infringement.

The general rule is that if a patent is found valid and infringed at first instance, an appeal against that decision suspends the enforceability of the injunction pending the outcome of the appeal.

However, plaintiffs usually request that the court declares its decision provisionally enforceable, meaning that the remedies can be executed immediately, even if an appeal is pending. The requests are usually granted. This allows for enforcement without waiting for the appeal period, and once an appeal is filed, enforcement proceeds without delay.

Decisions in first-instance patent cases can be appealed according to the general rules outlined in the Dutch Code of Civil Procedure. No leave to appeal is required.

Appeals to decisions from the District Court of The Hague are heard before the Court of Appeal of The Hague.

The Court of Appeal conducts a full review of the case, including the facts and legal arguments. This may include new evidence, grounds and arguments, including new attacks on validity or allegations of infringement. Other than in the first instance, restrictions do apply to the number of pages of written briefs.

The third instance is the Supreme Court, which hears cassation cases. The Supreme Court considers whether the Court of Appeal applied the law correctly and whether the Court of Appeal’s judgment is comprehensible and well-substantiated.

Before filing a lawsuit, various costs may be incurred, depending on the complexity of the case and the specific actions taken during the pre-litigation phase. Costs may include the following.

• Lawyers’ and patent attorneys’ fees: these cover the costs of legal advice, preparation of legal documents and evaluation of the strengths and weaknesses of the case, including patent analysis and review of the relevant products or processes.

• Expert fees: it may be necessary to hire technical or legal experts to assess the validity of the patent, infringement or damages.

• Pre-litigation actions: costs may include drafting and sending warning letters (to inform the alleged infringer of the infringement and of the intention to enforce the patent), protective letters (to protect the plaintiff’s position in the event of future litigation) and other preparatory activities such as negotiating with the opposing party or gathering evidence.

• Collection of evidence: costs may be incurred in gathering and preserving evidence.

The actual costs incurred prior to filing a lawsuit can vary greatly depending on the specifics of the case.

The court fees in Dutch patent cases are typically under EUR1,000.

Court fees in Dutch patent proceedings are relatively low, but overall litigation costs can vary significantly depending on the case’s complexity. The primary costs are typically related to attorney and patent attorney fees, as well as potential expert costs.

The losing party is generally responsible for covering the court fees and the legal costs of the prevailing part. Legal costs are normally awarded on a points-based system, where the recoverable costs will usually stay below EUR10,000.

However, in patent proceedings, the unsuccessful party may be ordered to reimburse the full costs incurred by the successful party including lawyers’ and European patent attorneys’ fees, capped as follows (depending on the complexity of the case):

• simple: maximum EUR30,000;
• standard: maximum EUR75,000;
• complex: maximum EUR150,000; and
• very complex: maximum EUR250,000.

Full costs can also be rewarded in nullity proceedings, provided there was a threat of infringement.

For the calculation of the lawyer’s costs, the court demands an overview of the billed hours and rates. Instead, the parties may agree on a specific amount of costs to be awarded to the prevailing party.

Alternative dispute resolution (ADR), such as mediation and arbitration, is available in the Netherlands, but is rarely used in patent cases. ADR is voluntary and requires the consent of the parties involved. There are no mandatory ADR procedures for patent disputes.

A mediator may be appointed to confer with the parties and their lawyers on a confidential basis and to help them find an amicable solution. The process may be suspended during this period at the request of the parties and may be resumed if the parties are unable to reach agreement.

While ADR may be a method to help resolve (certain aspects of) a dispute, it cannot invalidate a patent.

The assignment of patent rights, in full or joint ownership, requires the transfer to be documented in a written agreement. This transfer can be done through a notarial deed, but it is also possible through a private written agreement between the parties. While there is no strict obligation to register the transfer in the Dutch patent register, the registration of the deed must be registered in the patent register to be effective against third parties.

Under Dutch law, the transfer of a patent right requires either a notarial or private deed in which the transfer and acceptance of the transfer are explicitly stated.

The deed of transfer of the patent right is registered, at the request of one of the parties, in the register maintained by the Netherlands Patent Office. While a transfer that is not registered in the Netherlands Patent Office register is still valid, it in principle has no effect with regard to third parties if it is not registered.

A licence to a patent right may be granted informally, eg, orally or tacitly, without a written agreement. However, if the licence is to be enforceable against third parties, it must in principle be formalised in writing and registered with the Patent Office. Registration in the patent register is essential to ensure that the licence is enforceable against third parties.

In the absence of specific limitations, a licence is deemed to cover the full scope and duration of the patent right. However, a licence may be limited in a number of ways, for example, it may be limited in time and/or to certain acts. These limitations must be clearly defined in the licence agreement.

The procedure for licensing a patent right can occur either voluntarily or involuntarily.

Voluntary Licence

A voluntary licence arises through an agreement between the parties or by an accepted testamentary disposition. No formalities are required for the issue of voluntary licences ‒ verbal licences are also valid.

If the licence is to be enforceable against third parties, it must in principle be entered in the patent register. However, it is possible that other methods of notifying third parties about the existence of the licence could also be considered sufficient.

Compulsory Licence

A compulsory licence may be granted by the Minister of Economic Affairs where the public interest so requires, or by a court in certain circumstances, for example where the patentee or a licensee has not used the patented invention within three years of the grant of the patent.