Below you will find answers to the frequently asked questions. Is your question not listed? Feel free to contact one of our experts or submit your question via the contact form.
Frequently asked questions
A patent application or patent includes information about the applicant and inventor, the date of filing, status of the application, and the countries or regions in which the patent application has been filed and granted. Of course, the invention itself is also in the patent. Besides information about the subject matter and the invention, you can also read what falls under the scope of protection of the patent. The last aspect is determined by the claims in the patent.
On the ‘A detailed look at a patent’ page, you will find an example of a patent with an explanation.
Your software and app source code may be protected under copyright law. However, this only provides a limited scope of protection, because only an identical or close copy will infringe. To apply for a patent, software inventions need to be regarded as a 'technical' invention. There may be aspects of the software applications that are critical for your inventive concept and can be identified as truly technical and can therefore be patented.
There are various forms of IP rights available to protect your software apps. Some rights are automatically obtained upon creation, other rights are obtained by simple registration or are filed and subjected to examination before a right is obtained. The most relevant types of protection and the important points of interest are: patent, copyright, database law, trademark, design right.
Here too, the rules about what is and what is not permitted vary slightly in different countries.
In the Netherlands, research purposes are exempted from the scope of patent protection for something that has been patented in Section 53(3) of the Patents Act 1995 (ROW 1995). This is known as the research exemption. It is for the courts to determine when something is considered as research and is covered by this exemption. For instance, research is not restricted to academic purposes, and may also be carried out by commercial organizations. In general, much research, such as research into an as yet unknown application or an improved variant, falls under the research exemption. Research into whether commercial application is possible is generally covered by the research exemption. However, research for obtaining a required marketing authorization usually does not fall within the scope of the research exemption. You are advised to consult a specialist before embarking on any research if you think you may need the research exemption.
In Belgium, Section XI.34 of the Code of Economic Law provides clarity about the protection that is not granted by a patent. Subsection b reads as follows: actions that are performed on and/or with the object of the patent application, for research purposes. It means that it is possible to conduct research with a patented chemical, as long as the research is purely academic and not for commercial purposes. This is a specific example of the essential purpose of a patent. A patent allows a patent holder to benefit from a commercial monopoly in exchange for the disclosure of his or her invention. Thanks to this disclosure, non-patent holders are able to use the knowledge about the invention for research purposes.
In Germany, if the patented chemical can be purchased, it is possible to carry out research on the chemical, and the patent right is then exhausted. Furthermore, Section 11(2) of the Patent Act permits experimental activities related to the subject matter of patented inventions. There are no limits to the purpose of the experiment or research, and it may be for academic and industrial purposes. In any event, it is advisable to consult an expert before starting the research.
Companies in the Netherlands that make profits with R&D projects can make use of the so-called innovation box. This innovation box is not actually a separate box, but rather an 80% exemption on the profit from the innovation. It applies to profits and losses from intangible assets which were produced under the Research and Development tax scheme (WBSO). This includes royalties, licenses, and profits from the sale of intellectual property. However, it also applies to part of the sale price of a product or service that incorporates the innovation. Aside from the WBSO, larger companies will also need to have a patent portfolio in order to use the innovation box.
In Belgium, there are several federal and regional support measures related to patents. It is possible to obtain a subsidy for the development of an invention, through the SME Portfolio in Flanders, company checks (cheques-entreprises) in Wallonia, or through the Innovation Voucher issued by Innoviris in Brussels. These subsidies may also be made available during the patent application stage.
On the other hand, companies that have a Belgian R&D entity are partly exempt from tax/profits tax on income derived from a patent where the patent can be attributed to this Belgian entity. This income includes royalties, licenses, profits from the sale of intellectual property, for instance, but also includes a part of the sale price of a product or service that incorporates the patented innovation. This tax exemption can amount to up to 85% per cent of the income. The exact calculation is fairly complicated and depends on many factors, so it is best to consult an expert.
You need to pay attention to many things, particularly with licenses. When you sell a patent, you agree on the conditions and then you have to ensure that the patent rights are correctly assigned. A lot can go wrong here, but in principle this involves procedures.
The situation is more complicated with licenses. For instance, do you want to license the entire patent, or only part of it? Do you want to license it for the entire territory or the entire term, or do you want to license it with a geographical or time-based restriction? The conditions can also vary considerably. It is possible to agree on a fixed sum, but you can also work on the basis of a percentage of sales realized, the quantity of items produced and all manner of other conditions, or a combination of these. Furthermore, it is very important that the agreements are correctly recorded. You are strongly advised to engage a specialist for this.
An invention disclosure is sometimes used to subsequently prove that you possessed the knowledge shown in the invention disclosure on a certain date. If someone does not want to file a patent application, but also does not want to run the risk of a competitor patenting a similar product or process, the process or product can be described and filed with a civil-law notary. If you are then faced with a competitor’s patent in the future, you will be able to prove that you already possessed that knowledge. This may be helpful during infringement proceedings if you rely on a right of prior use. A notarized invention disclosure can also be helpful if you develop something with third parties and at a later date want to prove the knowledge you had prior to the collaboration. An invention disclosure is not a right, rather it is documentary evidence.
This all depends on the arrangements that were made with the other company. In principle, both parties have rights to the inventions that emerge from the research conducted with another company. This means that it is possible to jointly apply for a patent. It is important to think beforehand about how both parties deal with the granting phase in which the claims are formulated. Who has the final say about the claims if there is a difference of opinion? How are the costs shared? It is also possible to jointly go through a research process where agreements are made on which of the parties will acquire which parts of the IP rights. In this situation too, it is very important to document in advance who has a right to what.