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Legislative Implementation of Flexibilities - Netherlands (Kingdom of the)

Title:Articles 57-59 of the Patent Act of 15/12/1994, (Text as it applies on 03/06/2009) and Policy Rules on issuing compulsory licenses pursuant to WTO decision WT/L/540 on the implementation of paragraph 6 of the Doha declaration on the TRIPS Agreement and public health, under section 57 of the Act on Patent of 1995, of 23/12/2004
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 57

1. If Our Minister considers it in the public interest he may grant a licence under a patent to a party that he designates, provided that he precisely indicates the relevant content. Before rendering his decision, unless it is incompatible with the urgency of the matter Our Minister shall ascertain whether the patent holder is willing to grant the licence voluntarily and on reasonable terms. To this end, he shall give the patent holder an opportunity to express his opinions on the matter in writing and, at his request, also orally. The patent holder and the licensee shall be notified of the decision. In his decision Our Minister may impose upon the licensee the obligation to provide security within a certain term. The lodging of an objection and an appeal shall have a suspensive effect, unless the decision of Our Minister provides otherwise in view of the urgency of the matter.

2. If, after three years have elapsed since the grant of the patent, neither the patent holder nor any other party who has been granted a licence operates an industrial establishment in the Kingdom or in another State to be designated by general order in council for the Kingdom in which the product concerned is being made or where the process concerned is being applied in good faith and on a sufficient scale, the patent holder shall be obliged to grant the licence needed for operating such an establishment unless valid reasons are shown to exist for the absence of such an establishment. This obligation shall apply in respect of the holder of a European patent if, after three years have elapsed since the date on which the notification of the grant of the European patent was published in accordance with Article 97(4) of the European Patent Convention, an industrial establishment as referred to above is not in operation in the Netherlands or in the Netherlands Antilles or in another State to be designated by general order in council for the Kingdom.

3. Paragraph (2) shall not apply if the patent holder or any other party who has been granted a licence has an industrial establishment in operation in that part of the continental shelf contiguous to the Netherlands or Netherlands Antilles in which the Kingdom has sovereign rights, in which those acts referred to in that paragraph are performed in good faith and on a sufficient scale, provided that such acts are associated with and performed during the exploration for or recovery of natural resources.

4. The patent holder is obliged at all times to grant a licence required for the use of a patent granted in respect of an application that has the same or a later date of filing or, if a right of priority exists in respect of the application, the same or later date of priority, insofar as the patent for which the licence is requested represents a considerable technical advance involving a considerable economic value; however the patent holder will be obliged to grant a licence required for the use of a European patent only after the term for filing an opposition to the European patent has expired or after opposition proceedings thus instituted have ended. The scope of such a licence shall not extend further than is necessary for the use of the licensee's patent. The latter will be obliged to grant a reciprocal licence under his patent to the holder of the other patent.

5. The patent holder shall grant a plant breeder a licence in exchange for a reasonable fee if the plant breeder cannot obtain or exploit a plant breeder's right in respect of the plant variety without infringing the patent that was granted earlier and the licence is necessary for the exploitation of the plant variety to be protected, which represents a significant technical advance involving a considerable economic value in respect of the invention protected by the patent.

6. If a patent holder is granted a licence on the ground of Article 42(2) of the Dutch Seeds and Planting Materials Act (Zaaizaad- en Plantgoedwet), the patent holder shall grant the holder of the plant breeder's right a reciprocal licence, at the latter's request, to use the protected invention subject to reasonable conditions.

Article 57a

Notwithstanding the provisions contained in Article 57, a compulsory patent licence in the field of semiconductor technology may be granted only for non-commercial use by the government or in order to combat an act that has been determined to be restrictive of competition after judicial or administrative proceedings.

Article 58

1. If the licence referred to in Article 57(2), (4), (5) or (6) is unjustifiably withheld, the licence shall be granted by the court on the basis of a claim brought by the interested party. At the claimant's request the Office shall enter the writ of summons in the patent register.

2. If a patent is granted on the basis of this Kingdom Act, the claimant's claim shall be inadmissible if he does not attach to his writ of summons the results of a report by the Office or the European Patent Office as referred to in the European Patent Convention concerning the state of the art with regard to the subject matter of the patent for which the licence is being claimed.

3. The grant of a licence claimed pursuant to the first sentence of Article 57(4) may be suspended, subject to a term or subject to no term, if a claim to have the patent for which the licence is being claimed invalidated has been submitted within two months after service of the writ of summons in which the licence is claimed.

4. In the description of the licence granted the court may derogate from the licensee's claims and may also require that the licensee furnish security within a certain term. A licence granted pursuant to the first sentence of Article 57(4) may be transferred only together with the licence holder's patent. A licence granted pursuant to the first or third sentence of Article 57(4) shall not expire because the patent on which the licence is granted has lapsed upon the expiry of the period referred to in Article 36(6) or has been successfully claimed, but such a licence shall expire insofar as the patent is invalidated in whole or in part as a result of the claim referred to in paragraph (3).

5. A decision within the meaning of Article 57(1) or a court decision that has become final and has acquired the force of res judicata shall be entered in the patent register by the Office. If an obligation to furnish security has been imposed, the entry shall not be made before that obligation has been met. A fee, the amount of which shall be fixed by general order in council for the Kingdom, shall be due for the entry. The licence shall enter into effect only after the entry, but shall subsequently also have effect with regard to parties who became entitled to the patent after the entry in the register of the writ of summons referred to in paragraph (1). However, a registered licence granted on the ground of Article 57(4) shall have retroactive effect to the date on which the writ of summons was entered.

6. On the ground of a claim brought by the initiating party, in the absence of agreement the court shall fix the fee that the licensee must pay to the patent holder. In that context the court may also require that the licensee furnish security within a certain term or confirm or change the security stipulated by virtue of Article 57(1) or paragraph (5) of this Article.

Article 58a

1. A licence granted on the ground of Article 57 is not exclusive.

2. A licence granted on the ground of Article 57 may be transferred only together with the part of the business or the goodwill of the part of the business in which the licence is exercised.

3. A licence granted on the ground of Article 57 may be revoked if, taking into consideration a reasonable protection of the licensee's justified interests, the circumstances that led to the licence being granted have ceased to exist and it is unlikely that they will be revived. On the ground of a substantiated request the authority that granted the licence shall investigate whether the aforementioned circumstances continue to apply.

Article 59

1. In the interest of the defence of the Kingdom, and on a joint recommendation by Our Minister and Our Minister who is directly concerned, it may be provided by Royal Decree that the State shall be authorised to perform or cause others to perform acts, to be described precisely in that Decree, that the patent holder to be specified in that Decree has the exclusive right to perform pursuant to Articles 53 and 53a. The authorisation shall apply as long as the patent is in effect, unless a shorter term has been specified in the Decree.

2. Upon the entry into force of a Decree as referred to in paragraph (1), Our Minister who is directly concerned shall determine, by agreement with the patent holder, the fee to be paid to the patent holder by the State. If Our Minister who is directly concerned has not reached an agreement with the patent holder within six months from the date of the entry into force of that Decree, Article 58(6) shall apply mutatis mutandis, with the exception of the provisions concerning the furnishing of security.

Article 2 of the Policy Rules on issuing compulsory licenses pursuant to WTO decision WT/L/540

1. In the interests of solving public health problems in an importing state or group of states, the Minister shall, upon receiving an application that satisfies the requirements of articles 3 and 4 of these policy rules, issue a compulsory licence as referred to in section 57, subsection 1 of the Patents Act 1995 for the pharmaceutical product that is needed to address the public health problems in question.

2. The compulsory licence shall at a minimum state the type and amount of the pharmaceutical product to which the compulsory licence issued for the purposes of the order applies.

3. The compulsory licence shall relate only to pharmaceutical products intended for the national market or markets of the importing state or group of states.

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