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.
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.
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.
There are various classification systems worldwide, but the most commonly used are the International Classification Codes (IPC) and the Cooperative Patent Classification (CPC). These are systems that classify patent documents based on their content. All bodies that publish and grant patent documents are required to use IPC classes. This means that every patent document published has one or several IPC classes. The IPC is a vast system that comprises over 100,000 different classes.
The CPC is a combined classification system used by the European and American Patent Offices. It is even more extensive than the IPC, comprising over 250,000 classes. This system is increasingly used by national patent-granting authorities (alongside the European and American Patent Offices), such as the China National Intellectual Property Administration and the Korean Intellectual Property Office.
Patents can be granted for inventions that meet the requirements of patentability, including novelty, inventiveness and applicability or industrial applicability. It is possible to apply for a patent for a medicine that meets these requirements, and even for new uses of existing medicines. However, if the discovery only involves the mechanism on which the known action of a medicine is based, then the discovery is not deemed to be novel for patenting purposes. On the other hand, if the working mechanism leads to an improved form or an improved usage, for instance, a special form of dosage or a procedure for making a medicine, then there may be an underlying patentable invention.
If you suspect infringement, it is very important that you can prove this. If the patent is for a physical product, then the product, for instance, would need to be examined and then compared to the claims in the patent. It is advisable to seek advice from a patent attorney. If there has been an infringement of a patent for a procedure, it is often more difficult to obtain proof of the infringement. However, depending on the jurisdiction in which the infringement is suspected, there are legal instruments which make it easier to discover evidence.
Dutch law, for instance, allows for evidence to be seized if you can plausibly demonstrate that there has probably been an infringement, but you require more proof for infringement proceedings. This could also include hearing evidence from witnesses.
In Germany, the patent holder can require the suspected infringer to submit documents, materials or procedures that are the subject matter of the patent (Section 140cm Germany Patent Act) for examination. However, to do this, the suspected infringement must be deemed to be sufficiently plausible. Firstly, you can send a request for consent or a warning to the suspected infringer. In some cases, this brings any potentially infringing actions to an end. Secondly, you can start infringement proceedings at a German regional court with a patent division.
Belgium is an example of a country where there is the possibility of a 'distraint description'. This is a descriptive attachment in which a neutral expert can examine a production facility belonging to a suspected infringer.
In principle, the content of an application is fixed at the moment it is filed, and it is not possible to add anything to the content of the application. The purpose of this is to protect third parties against the existence of rights “with retroactive effect” that were not foreseen at the time of filing. However, it is possible to amend patent claims after filing, provided that this change is based on the content of the application as it was filed.
It is possible to file a continuation application up to one year after a patent application has been filed. This may include new information (subject matter). You can then rely on the filing date of the priority application (the priority date) for everything that was described in the original application (priority application), while the actual date on which the continuation application is filed will count as the assessment date for patenting purposes of the new information.
Therefore, this continuation application is a separate application. In practice, priority and a continuation applications are combined to increase the likelihood of a patent being granted. You can file the priority application and have it examined by the patent-granting authority to get an idea of any possible objections to granting the patent. You can take this into account when you draw up the (final) continuation application, for instance, by adding examples or changing the text. When you do this, it important to pay as much attention as possible to what has been published since the priority application was filed.