Six year Dutch registration patent violates TRIPS requirement ? An opportunity for foreign patentees

The new Dutch Patent of 1995 introduced so-called registration-patents. These registration patents do not require any examination of the application. They are granted on the basis of the application only and can therefore be obtained quickly and at a low cost. However, the 'quid pro quo' is a relatively short term of protection for such a patent: only six years from the date the application was filed, instead of the regular period of twenty years.

It seems that the Dutch legislature failed to notice that the TRIPS-Agreement that was executed in 1994 provides for a minimum duration for patents of at least twenty years from the filing date. Because of that minimum requirement these registration patent that only last for six years do not deem to be in conformity with TRIPS. On that basis foreign proprietors of such registration patents may take the position that their patents do by operation of lawlast for the regular twenty-year period, as required by TRIPS. Such a stance is probably not available for Dutch nationals, since they probably cannot rely on TRIPS, as recent case law of the Dutch Supreme Court seems to indicate.

All of this creates an unprecedented advantage for foreign companies that compete with Dutch companies in the Dutch market. In addition, answering questions as to whether certain patented technology is in the public domain in The Netherlands has become much more complicated, which also seems to seriously hinder Dutch industries in particular.

In the meantime, those foreign nationals that want to invoke the regular twenty year term for their registration patents have to make sure that they pay the necessary renewal fees to the Dutch Patent Bureau to avoid being in a position where their patent rights may have lapsed because of a failure to timely pay the mandatory. Since the system of 6-years registration patents came into effect on April 1 of 1995 these issues are of relevance as from April 1, 2001.

Excerpt, full article in: Patent World, June/July 2002, pages 20-23. - Dick van Engelen