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Tuesday, April 19, 2016

Unified Patent Court and unitary patent in the Netherlands: an update

Last year, as basic information for a public consultation, the Dutch government showed their
* draft approval act of the Unified Patent Court and
* draft act amending the patents act
[I have commented at the consultation regarding my concerns on the implementation for the part of the Kingdom of the Netherlands where the European Patent Convention applies, but not EU law (and thus not the unitary patent regulation), but that is not the point of this post]

The logic step after consultation (and -minor- amendment of the draft implementation act) is to send both draft acts for comment to the Council of State (Raad van State) for its mandatory advice. The Raad van State took its time and only delivered its advice on the amendment of the patents act in January 2016.

After the advice, the Government may amend the draft act, and send it, with the Advice, and its comments on that advice to Parliament. When approving treaties, it is customary to send the implementation act and the approval act of the treaty together, so they can be treated together.

Approval of the Agreement: status
This time however, things went a bit different. The Government placed the draft legislation on a list with urgent draft acts requiring speedy treatment in parliament; and send out the piece a few weeks after the Advice was received, but ... only the approval act of the Unified Patent Court, and NOT the draft patents act amendment, stating that needed more time. Parliament (in this case the House of Representatives, Tweede Kamer) did not sit around and send out its first round of written questions last week (apart from the "usual" questions like if there will be a Dutch local division/language arrangements; in this case also questions regarding who is competent for "searches based on a search warrant in UPC cases" and the link with breeder's rights.

Regarding the Amendments to the patents act, I have no idea what is the status, as the advice of the Council of State is only published upon presenting the draft act to parliament. So we don't know what the cause for the delay is. The amendments concerned 2 main things: bringing terminology between EU legislation, Unified Patent Court Agreement and the Patents act in line, so there would be no discussion (and thus also no divergence between national/classical European Patents and unitary patents), and making sure that after unitary effect was granted, the national/classical Dutch part of the European patent would remain, but only with regards to the Caribbean parts of the Kingdom where the unitary effect does not apply. [My guess is that it is this second change that is causing the government a headache. This headache may be strengthened because patents is one of only 4 areas where the countries in the Kingdom are voluntarily cooperating, and this implementation may be a source of conflict.]

The delay in this act is bound not to end any time soon. In an extremely unusual move, the government last week requested the Advice of the Council of State again. This time not for a new version of the approval act, but in a "verzoek om voorlichting" (a request for education/information) regarding a new European patent system". This can only mean that the government does not know or is in conflict on how to proceed following the advice. We unfortunately don't know the advice, nor do we know the content of the new request, so we'll have to wait and see what happens! It does seriously call into question whether the Netherlands will be amongst the initial users of the Unified Patent Court system: the Netherlands say they can ratify without the implementation act, but in my modest view that would give rise to too much legal uncertainty; it certainly has never been the plan from the beginning. ...

1 comment:

  1. Bedankt voor de update. Hopelijk wordt overwogen om octrooien niet langer op Koninkrijksniveau te regelen . Aruba doet al niet mee en voor Europees NL wordt octrooirecht steeds meer EU recht. Ik begrijp dat de andere regelingen de Belastingregeling voor het Koninkrijk, de Rijkswet administratieve bijstand douane en de Rijkswet Zetelverplaatsing. De andere IE rechten kortom niet. De praktische noodzaak voor samenwerking lijkt mij reeds met het afschaffen van het vooronderzoek met de ROW 1995 te zijn weggevallen.

    De kans is klein dat het om zo'n wijziging gaat. Het zal wel een technisch staatsrechtelijk punt zijn.

    Nederland zal uiteraard meedoen vanaf de start - vraag niet hoe het kan, maar profiteer ervan: onze rechters naar Luxemburg.