A patent, what's next?

A patent is a commercial instrument. The investments made during the granting procedure of the patent must later prove their worth. There are various means of commercially exploiting a patent. Competitors can be barred from the market on the basis of a patent, for instance. Licensing may, however, also prove to be the most appropriate means of exploitation. Moreover, having a granted Dutch patent may be fiscally beneficial (see information sheet under Fiscal benefits and patents).

 

Exclusive right

A patent, either Dutch or European having designated the Netherlands, may give the proprietor of a patent an exclusive right for the Netherlands. That right means that the proprietor can use its patent, for instance, to prohibit competitors from producing, using or trading in the patented product or from applying the patented method. The patent therefore gives the proprietor a temporary monopoly.

 

Infringement and nullity

Any use by competitors of the patented product or procedure despite the existence of a patent is known as patent infringement. The proprietor can then sue that competitor for that infringement. If the competitor fails to respect the patent rights, legal proceedings can be initiated before the court of The Hague. In the case of a six-year patent, the proprietor must first have a search report drawn up by the Dutch Industrial Property Office (see information sheet under Dutch patents).

If the judge rules in favour of the proprietor, the competitor's infringing actions can be stopped, and damages and other claims may be awarded. The party accused of the infringement may file a defence by claiming, for instance, that the patent is invalid. If the invalidity of a patent is claimed, it is obligatory in certain situations to submit the opinion of the Industrial Property Office (see information sheet under Opposition and opinions).

The analysis of infringement and invalidity of a patent is a complicated affair. De Vries & Metman has a great deal of experience with regard to such analyses, and can advise and assist you in legal proceedings. De Vries & Metman has excellent contacts with lawyers who specialise in patent cases.

 

Licences

The term 'patent licence' is used to indicate that the proprietor of a patent gives another party permission to do precisely that which others can be prohibited from doing under the protection conferred by the patent.

 

A licence, when?

The granting of a licence under a patent or a patent application may be an important means to make money on an invention and to turn a profit on an investment in patent rights. A licence can be granted, for instance, in those cases where the proprietor does not envisage any possibilities of exploiting the patent, or where is unable to make the necessary investments. Furthermore, the proprietor can exploit the invention itself in certain countries and grant others a licence in those countries where he does not operate. Furthermore, cross licences are conceivable, under which two manufacturers who are both proprietors of a patent `exchange' their licence rights. From the licensees perspective, it may be advantageous to acquire a licence, because that will enable it to extend its product range with few or no investments in the development of a new product.

 

Types of licences

There is wide scope in drawing up licensing agreements as regards the provisions to be made. The agreement may, for instance, relate to an exclusive or a non-exclusive licence, which gives the licensee (the party that obtains the right) the exclusive or non-exclusive right to exploit the invention. It is also possible to grant a separate licence per individual region. A great many variants are also possible in terms of the financial provisions: it is possible to agree on a lump-sum amount, a specific amount for every product sold, or a combination of these two possibilities. Furthermore, additional obligations and rights may be included in the licensing agreement, with due observance, of course, of the rules of (European) competition law. It is therefore virtually impossible to draw up a standard licensing agreement. Therefore licensing agreements are often tailor-made.

 

Finding licensees or licensers

It is not always easy to find a good licence partner. Entrepreneurs can always look for a licence partner themselves, of course, but there are also specialised organisations that can provide assistance or act as intermediaries in this respect.

 

Expert assistance

It is evident that unambiguous agreements are essential in order ensure smooth working relationship between licensee and licenser. In view of the wide variety of possibilities with regard to licensing agreements, the assistance of an expert is practically indispensable. Expert assistance may save both parties a great deal of annoyance and expense.