The aim of this bill is to prevent the lapse of law due to the impact of Covid-19 patents or patent applications.
To this end, it is proposed to set the surcharge owed for late payments of maintenance fees to zero and to create a power for the director of the Netherlands Patent Office to suspend periods for a fixed period under or pursuant to the 1995 Patent Act (ROW 1995). The power is intended for periods that are constraining for patent holders, applicants or patent attorneys. A suspension decision will be of general application. The ROW 1995 also has deadlines that the Netherlands Patent Office must meet itself. If these deadlines are constraining for the Netherlands Patent Office, this can be solved for the time being with the possibilities offered by Article 4:15 (3) of the General Administrative Law Act.
With regard to most of the terms set by or pursuant to the ROW 1995, it has been stipulated that exceeding these will result in the expiry of a patent. It is therefore about lapse by operation of law. Where it concerns a term to which an applicant for a patent is bound, exceeding the term usually means that the application will not be processed by operation of law. As a result, the application will expire. Both situations can have a major impact on the entrepreneur involved. After all, the expiry of a patent means that the invention in question is no longer protected. Competitors can then freely use this, without, for example, having to pay the patent holder a license or fear an infringement ban. The expiry of a patent can therefore have a major impact on the income sources and position of a patent holder or applicant on the market in which he operates. A defect in an application also leads to the invention for which the application requests protection becoming freely available. In the event of failure to rectify a defect in the application on time, the application and, as a result, the intended protection will generally lapse.
In addition to the possible suspension of terms, the present bill also makes a provision for the surcharge due, referred to in Article 61, third paragraph, of the 1995 ROW. From Article 61, first and second paragraphs, it follows that for the maintenance of a patent or European patent owes an annual amount, the maintenance tax. This is always due on the last day of the month in which the application that led to the patent was filed, or is considered to have been filed pursuant to Article 28, first paragraph, of the 1995 ROW.
It follows from article 62 of the ROW 1995 that a patent lapses by operation of law if the maintenance tax has not been paid within six calendar months after the expiry date. It follows from Article 61, third paragraph, of the ROW 1995 that a surcharge is payable when payment is made after the due date. There is therefore room to exceed the term for paying the maintenance tax, but this costs extra money, namely - pursuant to Article 6 (8) of the ROW 1995 Implementation Decree - 50% of the maintenance tax owed.
A deferment of the term is also de facto achieved by setting the allowance at zero. This gives the patent holder room for more urgent payment obligations at that time. The reduction of the surcharge applies to patents for which the expiry date is from 1 April 2020 to 31 August 2020. This grants patent holders who would owe a maintenance fee in these six months, each six calendar months, where, as a result of the crisis surrounding COVID-19, there is no cash, to pay this tax.
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NAZALI TAX & LEGAL |