‘Threshold for new patents will rise with mandatory examination'

The Dutch patent system may be heading for its biggest reform in thirty years. The government intends to require that all new patent applications be substantively examined in the future. This should increase legal certainty for entrepreneurs, but according to patent attorney Marco Coolen (AOMB), the measure could also raise barriers to innovation, especially for smaller players.

The current Dutch system has a striking feature: a patent is granted without a substantive examination of novelty and inventiveness. Applicants receive a novelty report indicating the strength of their application, but the patent is granted almost automatically. According to the government, this can create legal uncertainty and hinder innovation. A bill has therefore been proposed to significantly amend the Patent Act. In the future, all applications will be examined by the Netherlands Patent Office against the granting criteria before a patent is granted.

According to Marco Coolen, a Dutch and European patent attorney at AOMB, the proposal has been a long time coming. “This has been in the works for quite a while,” he says. “It’s the result of collaboration between the professional community and the Netherlands Enterprise Agency. The law needs to be overhauled because it’s outdated and contains errors. There has also been a consultation with entrepreneurs and patent attorneys. One of the ideas that came out of that process is the introduction of examined patents.”

Fewer Dutch patents

Coolen expects that a mandatory examination system will have direct consequences for the number of Dutch patents. “If all Dutch patents have to be examined, fewer will be granted. A European application may then become more attractive,” he says. European patents are already substantively examined and provide protection in multiple countries at once.

“There are really only two reasons to want a Dutch patent,” Coolen explains. “You only want protection in the Netherlands, or it’s cheaper. If the cost difference becomes smaller due to mandatory examination, you get broader protection throughout Europe for roughly the same money.”

At the same time, he expects the Dutch system to remain useful as a first step in the process. Entrepreneurs often file a Dutch application first to obtain a novelty report, then proceed to Europe. “What people may still do is file an application for that report. But if it really has to be examined and costs are involved, they may let it lapse.”

Higher threshold for SMEs

According to Coolen, the impact on innovation itself will likely be limited, but not evenly so. “The Dutch application is currently very accessible. For relatively little money, you can get a patent. That threshold will rise. For smaller entrepreneurs, that could become a serious barrier,” he says. The effect may be most noticeable at the lower end of the market. “There, innovation could feel some pain if fewer patents are filed as a result.”

At the same time, he points out that the current system is also used strategically. An unexamined patent can already have an effect, for example, by creating uncertainty among competitors. “I have clients who receive letters from someone holding a Dutch patent. That can make people nervous. An effect has already been achieved,” says Coolen. “Some companies don’t dare to launch something on that basis.”

He notes that the novelty report now functions as an informal filter. “The government relies on the applicant’s common sense. If the report is very negative and you still decide to litigate, that’s not very smart. But with a positive report, it can certainly carry weight.”

‘Wrongly granted patents’ is not a unique problem

One argument for the legislative change is that the current system can result in “wrongly granted” patents. Coolen nuances this point. “That’s inherent to the whole system. Even at the European Patent Office, patents are granted that are later overturned in court. That happens everywhere.”

Different systems exist worldwide, with and without substantive examination. The Netherlands is not unique in this regard. According to Coolen, the key question is which problem is actually being solved and at what cost.

A long road ahead

The bill is still in its early stages. The Council of State is reviewing it, after which both houses of parliament will have to consider it. “It’s mainly a topic within the professional community for now,” says Coolen. “The current law dates back to 1995. It makes sense that something will change, but exactly what it will look like remains uncertain.”

What is clear is that the debate over the Dutch patent system touches on a fundamental balance between accessibility and legal certainty. Stricter examination could improve patent quality and increase investment certainty, but it could also raise the threshold for the very entrepreneurs who currently use the system as a first step.

Whether the reform ultimately stimulates or slows innovation will depend on its precise implementation. As Coolen puts it: “There’s a lot to be said in favor of it, but also plenty of counterarguments. It’s a story full of nuances.”