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Intellectual Property in the Netherlands: COVID-19's impact on deadlines and procedural timetables

02/04/2020

The following article is an overview of COVID-19's current impact on the procedural timetables before Dutch courts and the Dutch and Benelux intellectual property offices.

Benelux trademark and Benelux design rights 

The Benelux Office for Intellectual Property (BOIP) has published a statement regarding the postponement of deadlines resulting from the Covid-19 situation.

This statement includes the following information:

  • From 16 March 2020, the BOIP will not withdraw any requests or procedures because a given deadline has not been met. This also applies to opposition proceedings and payments not received on time;
  • Based on developments, the BOIP will determine a date when normal work can be resumed (BAU-Date);
  • An additional period of one month will be granted for all requests and proceedings where limits expired between 16 March 2020 and the BAU-Date. This month will be calculated from the BAU-Date;
  • The BOIP cautions that the information in the online register may not be accurate;
  • The BOIP emphasises that this communication does not apply to actions at the Benelux Court of Justice, including deadlines for appeal against BOIP decisions;
  • The BOIP is not able to communicate the new deadlines for all requests and procedures on a case-by-case basis.

The BOIP has closed its premises to visitors. Priority deadlines will likely not apply to this communication since they are considered deadlines for other national offices.

Dutch Patents 

The position of the Netherlands Patent Office (NPO), which is a department of the Netherlands Enterprise Agency, includes the following:

  • Accessibility and submission of documents: As of 27 March 2020, the NPO has closed its premises to visitors and hearings, and other forms of physical consultation have been cancelled. This also means that it is not possible to personally (or by way of courier) submit patent documents to the NPO, which should be submitted digitally. SPC requests and follow-up mail must be submitted by e-mail. Priority documents also need to be submitted electronically, within the statutory period of 16 months. (The original documents should be sent to the NPO).
  • Terms: The NPO will deal with terms as smoothly as possible. It will extend the term for notifying formal defects by two months should the applicant not meet the regular term of three months. In most cases, if an application is not able to meet the 'hard' legal deadline, a restoration of rights (Article 23 Dutch Patent Act) can be requested. When assessing these requests individually, the NPO will take into account the special circumstances caused by COVID-19. 
  • Validations: As of Friday 27 March, the NPO will stop sending letters in the EP validation procedure. The letters will be published in the online file and the file can be accessed via the Patent Register on the Benelux Patent Platform.
  • NPO's services & communications: Various services rendered by the NPO will cease for the moment, such as sending research reports with written opinions, registering Dutch patent applications, granting Dutch patents and sending correspondence in PCT proceedings.

Dutch Plant Variety Rights: Board for Plant Varieties

  • Accessibility and submission of documents: the Board has closed its premises to visitors. The number of employees on location is reduced to a minimum, which may result in a delay in the Boards' processes. It is still possible to file applications for a national listing and for Plant Variety Rights as before;
  • Proceedings: Current deadlines for proceedings before the Board still apply and will not be changed. This also applies to submissions of DUS-material and payment of application and examination fees. If trials must be postponed, this will be communicated. Submission of material will take place in bilateral contact with the applicant.

Coronavirus related measures for IP litigation in the Netherlands

All District Courts, Courts of Appeal, Supreme Court and Special Courts were closed as of 17 March 2020. Oral hearings are postponed except for high urgency demands, but these  hearings will not be open to the public and only a limited number of people from the procedural parties may attend. This situation will continue until after 6 April. The Courts, however, will continue to render judgments.

Preliminary injunction (PI) proceedings:

  • Urgent cases will continue, but it is likely that most, if not all intellectual property procedures will no longer qualify as urgent. It is therefore safe to assume that most if not all court hearings and requests in infringement cases will be postponed until a later date.
  • For new PI proceedings, after receiving the application, the PI judge will determine whether the matter is urgent. In the event of an urgent case, the PI judge will determine an oral hearing – via telephone (video) connection or the parties will be asked if they will agree to a written procedure. An oral hearing will only take place in case of extreme urgency. If possible, the hearing will be held digitally. 
  • In principle, a written procedure takes place along the following lines: writ of summons, statement of answer, questions, comments or requests from the PI judge, reply plaintiff, rejoinder defendant and, at the discretion of the preliminary relief judge, possibly a “live” email connection for final questions and comments. When both parties agree to a written procedure, or when the PI judge so decides, the PI judge will determine the time limits for the various procedural actions. The PI judge determines the method of communication and provides the e-mail addresses to be used for this.

Proceedings on merits:

  • In the Netherlands, current proceedings on merits will continue, basically as before. Oral hearings will be limited as much as possible;

Appeal proceedings:

  • In the Netherlands, current appeal proceedings will continue, basically as before. Oral hearings will be limited as much as possible;
  • In principle, a request for delay to perform a procedural act is always granted. The court will decide on any objection from the other party;
  • The minimum term for all procedural actions is four weeks, so the term for serving a court document is also four weeks;
  • If the procedural act for which the case stands has not been carried out no later than the day after the roll date, an official extension of four weeks will be granted, even without a request from the parties for a postponement and also in the event that no postponement could be obtained under the normal procedural rules. There will be no lapse of rights.

In addition, the Global IP practice at CMS has put together an overview of COVID-19's current impact on procedural timetables here, reflecting the legislative status as of 31 March 2020 and regularly updated.

Our Dutch CMS team is up to date on the latest developments and is ready to assist you. For more information, contact your regular CMS advisor or local CMS experts.

Authors

Picture of Rogier de Vrey
Rogier de Vrey
Partner
Amsterdam