1. Can a patent application or patent be sold?
Yes, the right to a patent application or a patent can be transferred.
2. What is a licence?
A licence gives the authority to perform actions which fall under the patent right and as agreed in the contract between the licensor (the patent holder) and the licensee. The concrete details of a licensing agreement can be decided largely by the parties themselves. Restrictive provisions can thus be included in relation to the duration, the remuneration to be paid and the geographical area for which the licence is valid.
3. What is the exclusive right of the patent holder?
The patent holder is solely entitled to manufacture, use, bring into circulation sell, hire out, deal in, offer and import a patented product or a patented device. This also applies for a patented method. Products or methods which are covered by a patent but are used privately fall outside the exclusive right of the patent holder.
4. What happens if there is alleged infringement of a patent?
In this case the patent holder will have to take action himself. When it is not possible to arrive at a solution through consultation (for instance by cessation of the alleged infringement or by agreeing a licence) legal steps can be taken such as mediation, arbitration or, if necessary, taking action through the courts. In addition to the question of infringement, a court can also assess whether the patent satisfies formal requirements.
5. How can an allegedly wrongly granted patent be revoked?
A revocation procedure can be conducted in the courts. The court can be advised here by the Netherlands Patent Office. When the allegedly wrongly granted patent is a European patent which has been granted for less than nine months, a central opposition procedure can be started at the European Patent Office.
6. What can I do if I myself discover that a patent has been wrongly granted?
For a number of years now European patent law has provided the holder of a European patent with the option of centrally limiting or revoking his/her patent. This has the advantage that it need not be done separately for each national patent-granting authority. The patent holder also has complete control over the limitations to his/her patent. This is different from a revocation action or an opposition procedure in which a third party can put forward arguments and evidence in order to have the patent (partially) revoked.
7. What is the advantage of monitoring patent publications?
By monitoring a particular technical field it is possible to keep an eye on general developments. It is in this way also possible to see the direction in which specific competitors are heading. An additional advantage is that it is possible to receive timely notice that an undesirable patent has been granted. Since the period for an opposition to a European patent lasts for nine months following grant of patent, it can be important to be aware of grants in good time. Another objective can be to identify when a particular technique is no longer protected and so becomes accessible.
8. Why carry out a search in the patent literature?
The patent literature includes millions of publications. The current prior art in all technical fields can be found in these publications. In order to check whether an invention or a research development is not already known, it can be useful to carry out a timely search in the patent literature. It is moreover possible to keep an eye on the activities of competitors in the patent field by carrying out regular searches. Patent literature can also make a useful inspirational contribution during a development process. Access to a large part of the patent literature can be obtained via the free Espacenet database at nl.espacenet.com. It is however necessary to take into account here that patent applications are usually only published after 18 months. It may therefore be the case that someone else has already applied for patent on an invention, but that the invention does not yet appear in the database.
9. What part do patents play in an innovation process?
It can be useful to take account of patents during different stages of a development process. Patent literature can be useful for inspiration at the conceptual stage. At a later stage it may be useful to determine the patent positions of third parties in order to avoid potential conflicts. Once choices have been made in the development process, it may be useful to consider applying for patent on the achieved results. Be advised that there is no point in applying for patent if the inventions have already been made public. A patent application can be of great importance to companies in attracting investors; the opportunities for recouping investment are after all increased if a company can defend its market position using patents.
10. What is “landscaping”?
Landscaping is the mapping of the patent activities in a particular market or in a particular field. It is thus possible for instance to form a picture of how many patent applications are being filed by competitors and/or the techniques to which the patent applications newly filed by other parties relate. It is thus possible for instance to identify technical trends, possibly even before they show up in the marketplace. It is also possible to identify new parties at an early stage. Here too however there is always a delay of 18 months in the picture that emerges, since patent applications are not accessible in the first 18 months after filing.
11. What is the “Innovation Box” (formerly “Patent Box”)?
As part of changes to tax legislation in the context of “working toward profit” the government introduced a tax regime designed to stimulate innovation. This regime came into force in 2007 and has since been modified a number of times. At this moment it is possible to pay corporation tax at a reduced rate (5% instead of the usual 20/25%). The conditions for making use of this tax regime is that application has been made for patent on the innovation in question and that profit is made which is attributable to this innovation. A specific ruling must be agreed in advance with the tax authorities. Since 2008 an R&D declaration (a declaration of research and development work issued by the Netherlands Enterprise Agency) can also be used for participation in this regime. In order to make use of the Innovation Box regime it would be advisable to make contact with an accountant/tax specialist expert in this field.
12. Who can make use of the Innovation Box?
The innovation box can be used by anyone subject to taxation who develops intangible assets (for instance an invention or technical application) and has obtained a patent for them. As of 2008 companies which have an R&D declaration, but which do not own a patent or plant breeder’s right, can also make use of the Innovation Box.
13. Is the Innovation Box of any use to smaller companies?
The regime only applies to corporation tax. This is of no interest to small companies not liable for corporation tax. The regime moreover only provides for a lower tax on profits, so the technique underlying the patent application/the patent must at some point become profitable. In order to be eligible for the tax reduction it is generally necessary to apply modified accounting procedures. In the case of smaller commercial interests this could represent a problem in practice which is not outweighed by the eventual reduction in corporation tax. An additional problem is that by no means all small and medium-sized companies apply for patents on their inventions. Research by KPMG and Microsoft (2006) has shown that only about 40% of European small and medium-sized companies apply for a patent on inventions suitable for patenting.
14. What does it cost to apply for patent?
If a certified patent attorney is used to draw up the application, in an average case the cost is usually between €5000 and €6500. Depending on the type of novelty search, the additional filing fees for a Dutch patent application vary between €180 (for the national type) and €979 (for the international type). Applications for patent in other countries are charged at national rates which in general lie between €2000 and €7000 per country. The cost of filing a European patent application varies subject to the number of designated states, but amounts generally to about €6500. These amounts include the cost of a patent attorney. The overall costs for the patent grant process, which can take many years, can run into the tens of thousands of euros when patent is desired for a large number of countries.
15. What does a grant procedure cost?
Since the grant procedures in different countries vary considerably and it is not clear in advance how complex certain discussions will be, it is almost impossible to give a meaningful answer to this question. The grant of a Netherlands patent need not cost anything, while discussions with the European Patent Office may require one or more visits to Munich (main seat of the European Patent Office) or Rijswijk (a branch of the European Patent Office). It is finally necessary, following granting of a European patent, to make allowance for considerable costs for (partial) translation and local registration of the granted patent. These costs vary widely and are between €200 and about €3000 per country. In a number of European countries, including the Netherlands, Britain, Germany and France, it is nowadays no longer mandatory to translate the whole text, and it is possible to suffice with translation of the claims, with lower costs as a result.
16. Are there possible subsidies for obtaining a patent?
A subsidy scheme existed for some years which covered the cost of patent applications: so-called Innovation Vouchers. Innovation Vouchers are however no longer being issued. We advise you to consult the Netherlands Enterprise Agency for possible current developments in this area.