Invalidity of patent

You can always oppose the validity of a granted patent by instigating legal proceedings for that purpose, whereby you ask the court in ‘nullification proceedings’ to declare the patent totally or partially invalid. The lawyers and patent attorneys of Arnold + Siedsma can support you in this process.

Earlier publications can be used, such as earlier patent publications, books, journals and the like. In some specialist fields, scientific publications are also consulted. However, it is not inconceivable for you to have specific knowledge of your market and therefore know that a patented invention was already in the public domain before the filing date, for example by being exhibited at a show or by being the subject of an article in a technical journal.

It is advisable to begin the preparation for opposing a patent as early as possible, by investigating what happened before the date on which the patent was granted. Publications are not always retained for any length of time. Product brochures, price lists and similar documents, which are in most cases dated and normally contain relevant information on existing products, are often discarded following the appearance of newer additions. If you begin to collect information on the ‘prior art’ of a patent (application) at an early stage, you increase the likelihood of finding valuable data. It also makes sense to check whether the patent applicant himself has already disclosed the invention before the filing date.

You must also be aware that there is a downside to opposing a patent. If nullification proceedings of this type are unsuccessful because the granting body or the court again assesses the invention as positive, the likelihood of (new) nullification proceedings being successful is therefore considerably lower. The patent is then reinforced by the dispute.

This type of nullification of the patent can only be requested on the following grounds:

• the invention is not novel, inventive or industrially applicable;
• the invention is not described so clearly and completely that a person skilled in the art can apply it;
• the subject-matter of the patent is not covered by the originally filed application;
• the scope of protection was extended after the patent was granted; and
• the holder of the patent had no claim to it.

‘Nullification proceedings’ in respect of a Dutch patent always begin in the Netherlands with what is known as an ‘advisory procedure’ with the NL Agency. In this procedure, which begins in writing and concludes with a hearing, the grounds for opposing the patent are presented and the patent holder is given the opportunity to defend himself. This advisory procedure, which concludes with a reasoned opinion from the NL Agency on the validity of the patent, takes several months. The advisory procedure is conducted by your patent attorney.

Following the reasoned opinion from the NL Agency, the prosecuting party may choose to bring an action before the court to nullify the patent. In these legal proceedings, both parties are given the opportunity to present their arguments, initially in writing, and then orally. The reasoned opinion from the NL Agency forms the basis of the discussion, and is normally taken into account in the judgment of the court. The legal proceedings are conducted by your lawyer together with your patent attorney.