Revision of the Dutch Patent Act: from registration patent to examined patent

Under the current system, obtaining a Dutch patent is still relatively simple and fast. The patent is granted automatically, regardless of the outcome of the novelty search that is conducted. Under the new law, this system will change significantly. An application will no longer be granted automatically, but only after the examiner determines that all legal requirements have been met. This system is comparable to the European patent system.

Another important change is that an international (PCT) application can be continued directly in the Netherlands, without the intermediate step of filing a European application.

The new law is expected to take effect in early 2028. From that moment onward, it will in most cases take longer to obtain a Dutch patent. In addition, it will no longer be self-evident that a patent will actually be granted. Costs may also increase if additional actions are required during the examination procedure. These changes may affect your patent strategy.

Currently, a popular patent strategy is to first file a Dutch application and have it granted. If desired, protection can then be extended to other countries through a (international) follow-up application. This approach is relatively fast and inexpensive and almost certainly results in a patent. After the legislative amendment, this strategy will become less straightforward. For example, companies may choose to file a European application directly, or to withdraw the first application at a later stage and continue only with the follow-up application.

In addition, the possibility of continuing a PCT application directly in the Netherlands creates new opportunities. This may eliminate the need for a European application as an intermediate step after the PCT phase.

Patents also often play a role in the innovation box, a tax scheme under which profits derived from innovation are taxed at a lower rate. For larger companies, a legal right such as a patent is a requirement to make use of this scheme. This makes the current Dutch registration patent attractive. Since this may change as a result of the legislative amendment, it may be wise for entrepreneurs who use the innovation box to apply for a patent before the new law enters into force. It is advisable to seek timely advice on this matter. 

For more information about the innovation box

Read the article on our website.