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Legislative Implementation of Flexibilities - Netherlands (Kingdom of the)

Title:Articles 40 to 46 of the Patents Act of 15/12/1994 (Text as it applies on: 03/06/2009)
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

§ 3. Maintenance of confidentiality of the content of patent applications

Article 40

1. If the Office is of the opinion that the confidentiality of the content of a patent application may be in the interest of the defence of the Kingdom or its allies, it shall notify the applicant in that respect as quickly as possible, but in any event within three months after the date on which the application was filed. Our Minister of Defence may give instructions to the Office regarding whether such an interest may be involved.

2. At the same time as the notification referred to in paragraph (1) is sent, the Office shall send a copy of the decision and the description and drawings pertaining to the application to Our aforementioned Minister.

3. In the event that paragraph (1) applies, the entry of the application in the patent register shall be suspended.

Article 41

1. Within eight months of the filing of a patent application as referred to in Article 40, Our Minister of Defence shall decide whether the content of the application must be kept confidential in the interest of the defence of the Kingdom or its allies. He shall notify the Office of his decision.

2. A decision that the content of the application must be kept confidential shall have the effect of suspending the entry of the application in the patent register for a period of three years from the date of notification of the decision.

3. The suspension shall end if:

a. Our aforementioned Minister decides that the application need not be kept confidential; or

b. no decision has been made within the term referred to in paragraph (1).

4. Our aforementioned Minister may extend the term of suspension within six months preceding its expiry for periods of three years at a time. He shall notify the Office of his decision.

5. Our aforementioned Minister may decide that the content of the application need no longer be kept secret. Such a decision shall terminate the suspension.

6. The Office shall inform the applicant without delay of any decision in accordance with paragraph (1), (3), (4) or (5). The Office shall also inform the applicant without delay if no decision has been rendered as referred to in paragraph (3) or (5).

7. For as long as the suspension has not been terminated the Office shall send the aforementioned Minister, at his request, copies of all the relevant documents exchanged between the Office and the applicant.

8. If the suspension is terminated, the application nonetheless shall not be entered in the patent register until a period of three months has elapsed, unless the applicant requests otherwise.

Article 42

1. Any party whose patent application has become subject to Articles 40, 41 or 46 shall, at his request, be awarded compensation by the State for any damage that he has sustained as a result of the enforcement of those Articles.

2. The amount of the compensation shall be determined after the termination of the suspension. If, however, the term of suspension has been extended by virtue of Article 41(3), at the applicant's request the amount of the compensation shall be determined in instalments, the first relating to the period prior to the commencement of the first extension, the next to the period between two successive extensions and the last to the period from the commencement of the last extension to the termination of the suspension; the amounts shall be determined upon the expiration of the relevant periods.

3. The amount of the compensation shall be determined, if possible, by Our Minister of Defence and the applicant in consultation. If no agreement has been reached within six months from the date of the expiry of the period to which the compensation relates, the first sentence of Article 58(6) shall apply mutatis mutandis.

Article 43

1. If an applicant requests that the content of a patent application be kept secret in the interest of the defence of another State, or if the government of that State makes such a request, provided the applicant has stated in writing that he renounces any compensation for damage he might sustain by reason of the enforcement of this Article, the Office shall immediately send a copy of that request and of the specification and drawings pertaining to the application as well as the aforementioned waiver to Our Minister of Defence. In such a case, the entry of the application in the patent register shall be suspended. In the absence of a waiver, the Office shall notify Our aforementioned Minister in that respect without delay.

2. Within three months following the date of filing of the request, Our aforementioned Minister may decide that the content of the application must be kept secret in the interest of the defence of the State concerned, provided that he has ascertained that a duty of confidentiality has also been imposed on the applicant by that State and that the applicant has been given permission by that State to file an application subject to a duty of confidentiality.

The applicant and the Office shall be notified of the decision.

3. A decision within the meaning of paragraph (2) shall result in the entry of the application in the patent register being suspended until Our aforementioned Minister decides that the content of the application need no longer be kept secret. The suspension shall end if a decision has not been rendered within the term referred to in paragraph (2).

4. Article 41(7) and (8) shall apply mutatis mutandis with regard to an application as referred to in paragraph (1).

Article 44

1. In the event that Our Minister of Defence is of the opinion that it is in the interest of the

defence of the Kingdom for the State to use, put into practice or cause to be used or to be put into practice the subject matter of a patent application to which Article 40, 41 or 43 has been applied, he may take measures to that effect after giving notice of the decision in question.

That decision shall contain a precise description of the acts that the State must be able to perform or cause to be performed.

2. The State shall pay the applicant compensation for the use or the putting into practice of the subject matter of the application pursuant to paragraph (1).

3. The amount of that compensation shall be determined, if possible, by Our aforementioned Minister and the applicant in consultation. If no agreement has been reached within six months following the date of the notification referred to in paragraph (1), the first sentence of

Article 58(6) shall apply mutatis mutandis.

Article 45

If the State itself is the holder of a patent application and if Our Minister of Defence notifies the Office that its content must be kept secret in the interest of the defence of the Kingdom or its allies, the entry of the application in the patent register shall be suspended until Our aforementioned Minister notifies the Office that the content of the application need no longer be kept secret.

Article 46

1. A European patent application whose applicant knows or reasonably should know that the

content thereof should be kept confidential in the interest of the defence of the Kingdom or its

allies shall be filed with the Office.

2. The Office shall immediately send a copy of the description and drawings pertaining to the

application to Our Minister of Defence.

3. Not later than three weeks before a European patent application must be sent to the European Patent Office, Our aforementioned Minister shall notify the Office whether the content of the application must be kept confidential in the interest of the defence of the Kingdom or its allies.

4. If notification in accordance with paragraph (3) has been effected in the negative or if no notification has been given, the Office shall forward the European patent application to the

European Patent Office referred to in the European Patent Convention with due observance of the term stipulated in that Convention.

5. The Office shall inform the applicant without delay of any notification by virtue of paragraph (3) or of the absence thereof.

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