The government measures to combat COVID-19 not only affect business operations but they could also impact you as a patent applicant or patent holder. Many countries have (temporarily) adjusted their work methods. V.O. closely follows the developments on your behalf. A summary of the situation in the Netherlands, Belgium and Germany.
For patent applications and patent holders, the (statutory) time limits and deadlines maintained by the national patent offices are of particular importance. Most national patent offices are fairly accommodating with time limits but that is not always possible with the statutory terms.
The Netherlands Patent Office (OCNL) is as flexible as possible with the time limits and takes full advantage of the scope offered by the Dutch Patent Act 1995. They have extended the formal defects time limits by two months if the standard three months is not met. To accommodate the “hard” statutory terms and to be able to postpone the deadline, both the Dutch Senate and the House of Representatives voted in favor of the proposal for the ‘Tijdelijke rijkswet voorziening Rijksoctrooiwet 1995 COVID-19’ (COVID-19 Temporary Provision of the Dutch Patent Act 1995). The Act has been published in the Bulletin of Acts, Orders and Decrees on 20 July 2020. Based on this act, the director of the OCNL will be authorized to adjust the time limits retroactively up to 12 March 2020.
On the basis of the extension of the emergency law, which is in force until 31 July 2021, term extensions are continued for:
- the filing of translations of European patents (Art. 52 DPA 1995 in conjunction with Art. 23 Implementing Decree DPA 1995);
- the provision of priority data (Art. 9(8) DPA 1995); and
- the filing of a request for restoration (Art. 23(3) DPA 1995).
The German Patent and Trade Mark Office (DPMA) states as follows:
“As of 1 June 2021 hearings in IP procedures, hearings before the Arbitration Board under the Employee Inventions Act and hearings before the Arbitration Board under the Collective Management Organisations Act may again be held at the German Patent and Trade Mark Office (DPMA) provided that infections are kept below certain limits. Participants in hearings are required to wear FFP2 face masks.
In the offices, visitors will be guided to their destination either by signs or by the person having issued the invitation to the DPMA. Hearings will take place in conference rooms furnished and equipped in accordance with the DPMA’s hygiene standards.”
Regarding the statutory terms, Germany has decided not to implement an amendment of law for extending or postponing the terms.
It is not that different in Belgium. They are not in favor of postponing the statutory terms either. In anticipation of any following crisis, the government is preparing an amendment of law but it will not come into force in the short term.
European Patent Office (EPO)
The EPO has also taken measures due to COVID-19. Patent application hearings for the Examining Divisions can only be held by video conference. That also applies to hearings in opposition procedures. If, for special reasons, a physical hearing is necessary, it will only take place after 15 September 2021.
The Boards of Appeal also use video hearings, even without the consent of the parties, as of 1 January 2021.
V.O.’s offices are fully equipped for participation in video conferencing sessions.
Although hearings via video conferences are an understandable measure, for most patent attorneys it is undeniable that physical attendance at oral hearings has significant added value for patent applications. If hearings were to be held by video conference even after the end of the COVID-19 pandemic, this would, in their view, work to the disadvantage of users of the European patent system.