Patent law

What we do

A patent protects innovative inventions. To obtain a valid patent right, the invention must be of a technical nature, new, inventive, and industrially applicable. It must concern tangible items that can be used and reproduced for commercial purposes. A technical innovation in a process (for example, a production machine) can also fall under this. The patent application is a precise process in which it must be possible to substantiate and argue what the innovative invention entails and why the invention is innovative in nature.

We handle patent applications, provide guidance and advice, and, if necessary, conduct an expert feasibility study of the patent application. Once a patent right has been established, the holder enjoys exclusive protection against commercial use of the invention for 20 years. However, an annual fee must be paid to prevent the patent from expiring. We assist companies with 'maintaining' the patent, which means managing the annual administrative burden associated with retaining the patent. In the event of patent infringement, damages may be claimed, among other things.

We have the knowledge and expertise to assume diverse roles: from advisory services to dispute resolution. We have an experienced team of lawyers and legal experts in the field of patent law. Furthermore, our legal experts and staff within the patent law team are bound by strict confidentiality agreements. In addition, our lawyers are bound by professional secrecy. Please contact us to discuss the possibilities.

Patent law within intellectual property

Patent law is part of the broader field of Intellectual Property (IP) law. Whereas trademark law and copyright protect distinguishing marks and creative works respectively, patent law specifically protects the technical invention: a new product or a new process of a technical nature. A patent grants the holder a temporary and exclusive right to prohibit others from using the invention commercially. This makes the patent one of the most powerful instruments within IP law, but also one of the most formal: protection only arises after a granting procedure and must be maintained annually.

For our clients, it makes no difference whether it concerns an international technology group with an extensive patent portfolio or an inventor developing a smart machine part from his workshop. MKB Juristen works with mixed teams of lawyers and (in-house) legal counsel, ensuring that both the strategic and procedural aspects of a patent matter are in trusted hands.

Legal framework: the National Patent Act 1995

In the Netherlands, patent protection is governed by the National Patent Act 1995 (ROW 1995), supplemented by the Implementing Decree and the Implementing Regulation. Three core conditions apply to a valid patent: the invention must new (not part of the state of the art), based on inventive activity (inventiveness), and industrially applicable . A Dutch patent is granted by the Netherlands Patent Office (part of the Netherlands Enterprise Agency) without a prior substantive novelty test; however, the grant does include an examination of the state of the art, which plays an important role in subsequent proceedings.

The scope of protection of a patent is determined by the claims accompanying the patent specification. A third party only infringes if their product or process exhibits all the characteristics of at least one independent claim. The precise formulation and explanation of those claims is therefore decisive for the value of a patent. We provide advice on this matter and, where necessary, consult with a patent attorney.

Patent infringement: enforcement

Anyone holding a patent must personally monitor whether others are infringing it. Infringement occurs when a third party manufactures, uses, puts into circulation, sells, imports, or even merely keeps in stock the patented invention for any of those purposes without permission. If you detect infringement, various enforcement measures are available:

• a cease and desist letter in which the infringer is warned and requested to cease the infringement;
• summary proceedings before the preliminary relief judge, through which an injunction against infringement (subject to a penalty payment) can be sought within the short term;
• substantive proceedings in which, in addition to an injunction, damages or disgorgement of profits and the destruction or recall of infringing products may be claimed.

All national patent cases in the Netherlands are concentrated at the District Court of The Hague, which has sole jurisdiction. Parties to the proceedings must be assisted by a lawyer; for the technical-legal substantiation, collaboration with a patent attorney is often required. Our lawyers conduct these proceedings while simultaneously safeguarding the underlying commercial interests.

Nullity and defense against an infringement claim

If you are accused of infringement, there are often more options available than appear at first glance. A granted Dutch patent can be challenged by a third party throughout its entire term on the grounds of invalidity. Pursuant to Article 75 of the Dutch Patent Act 1995, the court may invalidate a patent in whole or in part, for example because the invention was not new or inventive at the time of the application, or because the claims are insufficiently supported by the description. In practice, a defense of invalidity is often instituted as a counter-attack (reclaim) against an infringement claim.

In addition, defenses may arise such as the right of prior use (you were already using the invention before the patent application) or the argument that your product falls outside the scope of the claims. We assess your position objectively and choose the route—settlement, litigation, or going on the offensive—that best suits your business interests.

European patent, unitary patent and the UPC

Protection does not stop at the border. Under the European Patent Convention, a single European patent be applied for at the European Patent Office, which is subsequently validated on a country-by-country basis. Additionally, since 2023, there has been the European patent with unitary effect (unitary patent), under which a granted European patent takes effect in the participating EU countries all at once.

The Unified Patent Court (UPC) plays a central role in disputes concerning European patents : this Unified Patent Court handles infringement and invalidity cases for the member states simultaneously and also has a local division in The Hague. For entrepreneurs, the choice between litigation at the national level, a classic European patent, or a unitary patent—and whether or not to “opt out” at the UPC—is strategically important. We advise you on these choices so that your patent portfolio aligns with the markets in which you operate.

Employee inventions and patent law in the employment relationship

Many inventions originate in the workplace. The Dutch Patent Act 1995 stipulates that, in principle, the right to a patent for an invention made by an employee in the course of their employment belongs to the employer. If the employee has not already received compensation for the invention factored into their salary, they may, under certain circumstances, be entitled to equitable remuneration. For research-driven companies, start-ups, and spin-offs, it is advisable to clearly establish this in advance in employment contracts and IP provisions. We draft these clauses, thereby preventing control over valuable inventions from being called into question later on.

Licensing and exploitation of the patent

A patent only has economic value when it is exploited. This can be done by bringing the invention to market yourself, but also by granting permission to others for a fee through a license. Furthermore, for standard-essential patents , FRAND obligations (fair, reasonable, and non-discriminatory) apply: the holder must grant licenses on fair and non-discriminatory terms. We draft license and transfer agreements, negotiate royalties, and ensure that your patent rights are utilized in a watertight contractual manner. See also our page on the broader patent law.

Frequently asked questions about patent law

What is the difference between a patent and a patent?

None: “patent” and “octrooi” are synonyms. In Dutch legislation and regulations, the term “octrooi” is consistently used, whereas “patent” is common in everyday (and international) usage.

How long does patent protection last?

A patent grants exclusive protection for a maximum of twenty years, calculated from the application date. To maintain the patent during that period, an annual maintenance fee must be paid; if payment is not made, the patent lapses.

Before which court is patent proceedings heard?

For national Dutch patents, the District Court of The Hague has exclusive jurisdiction. For European patents, the Unified Patent Court (UPC) may also have jurisdiction.

Can I handle patent infringement myself?

You may write to an infringer yourself, but legal assistance from a lawyer is mandatory for proceedings. Because every situation requires a unique approach, it is advisable to have your position legally assessed before taking any steps.

Engage a patent lawyer or legal expert

Whether you wish to apply for, manage, or defend a patent, or conversely counter an infringement claim from another party: patent law is a specialized field where technology and law converge. MKB Juristen offers you lawyers and (in-house) legal counsel who handle both strategic advice and litigation—for the international corporation just as well as for the baker on the corner with a single valuable invention. Our staff are bound by strict confidentiality, and our lawyers are additionally bound by professional secrecy. Contact us to discuss your situation without obligation.