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COVID-19 update 9

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, Germany and Belgium.

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

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. 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 30 September 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).

No more term extensions after 30 September 2021

According to OCNL, applicants and patent holders, by now only sporadically make use of the offered term extensions. Accordingly, the emergency law will be discontinued by 30 September 2021.  This means that as of 1 October 2021, all deadlines will again apply as they were stipulated in and under the Dutch Patents Act 1995.

Germany

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.

Belgium

The statutory terms cannot be postponed in the short term. However, the  Belgian Office for Intellectual Property (DIE)assured in a statement (last version: 21/01/21) that flexibility from their side will be maximized in terms of interpretation of the legal provisions and regulations, within the restrictions imposed by the current legal framework.

In practice, the DIE will review all files where terms were exceeded due to the pandemic on a case to case basis, in order to look for ways to maximally soften the consequences of the non-compliance, within the restrictions imposed by the current legal framework. Secondly, the DIE has committed (since 23/11/20) to e-mail a copy of any registered letter as long as they have the necessary contact details to their disposal, with particular attention for notices with binding terms, of which non-compliance is sanctioned with a loss of rights, or notices that establish such a loss of rights.

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 oral proceedings for the Examining Divisions and Opposition Divisions in first instance will only be held by video conference.. If, for special reasons, in-person oral proceedings are necessary, they will only take place after 31 January 2022.

The Boards of Appeal also use video oral proceedings, even without the consent of the parties, as of 1 January 2021. In-person oral proceedings at the EPO in Munich continue to take place on a limited basis, but can be changed into video conferencing upon request of the party or parties.

V.O.’s offices are fully equipped for participation in video conferencing sessions.

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Henri van Kalkeren

Henri van Kalkeren

  • European and Dutch Patent Attorney
  • Senior Associate
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