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English of Intellectual Property Rights WORLD TRADE RESTRICTED IP/Q3/NLD/1 ORGANIZATION 22 October 1997 (97-4631) Council for Trade-Related Aspects Original: English of Intellectual Property Rights REVIEW OF LEGISLATION IN THE FIELDS OF PATENTS, LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS, PROTECTION OF UNDISCLOSED INFORMATION AND CONTROL OF ANTI-COMPETITIVE PRACTICES IN CONTRACTUAL LICENCES Netherlands1 The present document reproduces the questions put to the delegation of the Netherlands and the responses given in the review of legislation on patents, layout-designs (topographies) of integrated circuits, protection of undisclosed information and control of anti-competitive practices in contractual licences at the Council's meeting of 26-30 May 1997.2 _______________ I. REPLY TO THE GENERAL QUESTION ON PRIORITY RIGHTS3 Does your country recognize a right of priority on the basis of an earlier patent application filed in any other WTO Member by a national of a WTO Member? Yes. Article 9 of the Rijksoctrooiwet (the Netherlands' Patent Law) provides that priority rights, that are based on patent rights granted in a country that is a Member of the WTO, are valid in the Netherlands. No distinction is made between WTO Members which are members of the Paris Convention and those which are not party to this Convention. II. REPLIES TO QUESTIONS POSED BY JAPAN 1. In your country, are the following subject matters protectable by patent: (1) plants and animals, and (2) plant and animal varieties? 1As regards laws and regulations relevant to the areas under review as notified by the Netherlands under Article 63.2 of the Agreement, reference is made to documents IP/N/1/NLD/1/Rev.1, IP/N/1/NLD/P/1-2 and IP/N/1/NLD/L/1. 2The minutes of the meeting have been circulated in document IP/C/M/13. 3At the meeting of the TRIPS Council of 27 February 1997, Members agreed to respond to this question in the context of the present review (document IP/C/M/12, paragraph 18). IP/Q3/NLD/1 Page 2 (1) Article 3b of the Dutch Patent Law reads as follows: "No patent shall be issued for: plant or animal varieties or essentially biological processes for the production of plants or animals and the products thereof, with the exception of the microbiological processes unless these are prohibited by or pursuant to the Act of Health and Welfare of Animals." The Dutch Parliament has stated that this rule has to be interpreted as that plants and animals as such cannot be patented. The present Dutch Patent Law is in force since April 1995 and there are no court rulings on this subject yet. (2) It is clear from the above mentioned Article 3b of the Dutch Patent Law that plant and animal varieties are not protectable by patent. 2. In your country, is the act of offering for sale included in the exclusive rights of patent? According to Article 53.1 of the Dutch Patent Law a patent shall confer on its owner the exclusive right to put on the market, to resell or to deal in any other way in or for his business the patented product, or to offer, import or store it for any of those purposes. The same applies to products directly obtained as the result of a patented process. 3. In your country, what kinds of acts are recognized as exceptions to the exclusive rights conferred by a patent right? The acts which can be recognized as exceptions to the exclusive rights can be found in Articles 53.3, 53.5, 54 and 55. Article 53.3 states that the exclusive right shall not extend to acts solely serving for research of the patented matter, or to the preparation of medicines in pharmacies for immediate use in individual cases on medical prescription, nor to acts related to medicines prepared in this manner. Article 53.5 refers to products which were manufactured by a business prior to the grant of a patent. These products may continue to be used on behalf of that business notwithstanding the patent. In Article 54 the use of the subject matter of the patent on board of vessels, aircrafts or land vehicles from other countries are excluded from the exclusive right of the patent as well as the acts specified in Article 27 of the Chicago Convention on International Civil Aviation. Article 55 specifies that any person who has already manufactured or applied or who has commenced implementation of his intention to manufacture or apply, in or for his business, the subject matter of a patent application filed by somebody else, on the date of filing or the date of priority, shall continue to have the right to perform the acts of Article 53.1, the right being based on prior use, unless his knowledge was obtained from matter already made or applied by the applicant or from the applicant's descriptions, drawings or models. 4. In your country, in which case is use without the authorization of the right holder permitted, including use by the government or by third parties authorized by the government? In three cases it is permitted to use the patent without authorization of the patent holder. Firstly, if it can be considered to be in public interest to grant a compulsory licence (Article 57.1). Secondly, if neither the patent holder nor a licensee operates an industrial establishment in the Realm or in another state to be designated by Royal Decree, in which the product concerned is made or the IP/Q3/NLD/1 Page 3 process concerned is being applied, unless valid reasons are shown for not operating an industrial establishment. There will be a revise of the Royal Decree in which the list of designated countries will be extended to the Member States of the WTO (Articles 57.2 and 57.3). Thirdly, if a licence is required for the working of a patent granted in respect of an application which has the same or a later date of filing or where a right of priority exists, the date of priority, insofar as the date for which the licence is required represents an important technical advance of considerable economic significance (Article 57.4). In general a compulsory licence can be granted for patents in the field of semiconductor technology only if it is granted for non-commercial use by government or to remedy a practice determined after judicial or administrative process to be anti-competitive (Article 57.a). 5. In your country, how is the obligation under Articles 34.1 and 34.2 of the TRIPS Agreement regarding the shift of the burden of proof in civil proceedings for patent infringement related to a process patent implemented? Where proceedings are brought for the enforcement of a patent relating to a process for the manufacture of a new product, it shall be assumed that the product in question has been manufactured using the patented process, unless the defendant can establish the plausibility of the contrary (Article 70.7). III. REPLIES TO QUESTIONS POSED BY THE UNITED STATES 1. Article 2.2(c) of the Netherlands Patents Act of 1995 specifies that computer programs are not to be regarded as inventions. Please explain whether, under this provision, inventions within the categories specified below are not eligible to be patented in the Netherlands, notwithstanding the fact that the invention is novel, involves an inventive step, and is useful: (a) process inventions which, in whole or in part, consist of steps that are performed by a computer and are directed by a computer program; (b) product inventions consisting of elements of a computer-implemented invention, including in particular: (i) machine-readable computer program code stored on a tangible medium such as a floppy disk, computer hard drive or computer memory; and (ii) a general purpose computer whose novelty over the prior art arises primarily due to its combination with a specific computer program. If any of these types of inventions are excluded from eligibility to be patented, please explain how the Dutch patent law complies with the obligations of Article 27 of the TRIPS Agreement, which mandates patent eligibility for all categories of invention without discrimination. It is difficult to say in general whether or not the above mentioned categories are eligible for patent protection under the Dutch patent law, because it's up to courts to interpret the provisions of the Dutch patent law. The judgement of courts is highly dependant on the circumstances of a case. In Dutch patent law computer programs as such are excluded from patent protection. A Dutch patent can be granted for machines and processes in which computer programs are used, under the condition that the invention has got a technical character. The purpose of the invention has to be a technical process. IP/Q3/NLD/1 Page 4 That computer programs as such are protected by copyright law follows from the European directive on the protection of computer programs (91/250, PbEC L. 122/42). On the basis of this directive original computer programs are protected under Dutch copyright law. On this point Dutch law is in line with Article 10.1 of the TRIPS Agreement. 2. Please explain how Articles 56.2 and 65.3 of the Netherlands’s Patents Act of 1995, which impose a limitation on the right of a patent owner to conclude licensing contracts or to assign rights, respectively by making them effective only after they are entered into the patent register, are consistent with Article 28.2 of the TRIPS Agreement. The registration of a licence contract or an assignment of rights cannot be considered as a limitation of the right of the patent holder to conclude these acts.
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