As we all know, Dutch patent applications do not need to undergo substantive examination and are granted quickly, making them the choice of many Chinese companies to obtain overseas patent rights.
But did you know that even though it is so easy to apply for a Dutch patent, once the rights expire, it is not so easy to restore them!
The annual fee for the Netherlands must be paid annually starting from the fourth year. Many Chinese companies have neglected patent maintenance after obtaining the patent rights in the Netherlands, resulting in the expiration of their rights due to failure to pay the annual fee in time. At this time, if they need to transfer, change or conduct patent transactions based on the Dutch patent, it will take a lot of time and money to restore the Dutch patent rights.
First of all, the Netherlands Patent Office RVO is very cautious about requests for restoration of rights due to the expiration of annual fees. The possibility of restoring rights by simply paying the request fee for restoration of rights is zero. Only when the reason for the expiration of rights is involuntary and the reason for the expiration is indeed due to an error, and the error could not be avoided despite all due care, only in this case is it possible to restore rights in the Netherlands. In other words, the RVO only accepts requests for restoration of rights based on "due care".
According to the relevant provisions of the Dutch Patent Law, if the patent rights are invalidated due to violation of the patent owner's wishes, the patent owner may submit a request for restoration of rights to the RVO within 2 months after the error or negligence of not paying the annual fee is discovered, and no later than 1 year.
After filing a request for restoration of rights, the RVO will hold a hearing chaired by a senior officer of the RVO Special Division to hear a detailed explanation of the lapse of rights. The RVO has extremely strict standards for "due care", including:
- Although the staff who caused the error were well trained and guided, experienced and had a good sense of responsibility, they still made mistakes and omissions due to momentary negligence;
- The right holder needs to have the necessary systems in place to check for foreseeable errors;
- Based on the above criteria, the staff member who caused the mistake/error is still blameless.
Based on the above criteria, questions asked at the hearing may include:
- Was the staff member who caused the error appropriately trained, experienced, and responsible?
- Was the oversight that led to the error unintentional? Can it be excused?
- Was the omission that led to the fault foreseeable?
- Is there a verification process in place? Is it double checked?
- In addition to the staff responsible for the annual fee payment, will there be independent checks by others to detect possible omissions?
- Why was the omission not discovered despite the double check?
In view of this, the right holder needs to prove that the failure to pay the annual fee on time occurred despite all efforts and attention of trustworthy and experienced staff for the detailed explanation or evidence provided. This scenario is suitable for the IP management department of an agency or enterprise. During the hearing, the RVO will pay more attention to the double check. If this cannot be proved, the RVO will basically not accept the request for restoration of rights.
During the hearing, it will be helpful to submit to the RVO an affidavit signed by the staff member who caused the error. It is best to provide evidence of double checking of daily work procedures and the personal situation of the staff member. At the same time, although the annual fee period has expired, the right holder still needs to pay the annual fee normally. If the request for restoration of rights is ultimately rejected by the RVO, the annual fee paid will be refunded.
