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Patent limitation easier before the Dutch courts

The district court of The Hague has decided that the new European Patent convention (EPC 2000) means that patentees have the right to limit claims with fewer obstacles than have been imposed by Dutch courts in the past.

Dutch courts have long accepted limitation of patent claims during court proceedings, but in the past limitation was subject to additional requirements beyond those imposed on amendments during European opposition (no extension of protection and no new matter). In its Spiro-Flamco decision the Dutch Supreme court (Hoge Raad) had decided that limitation was available only if the skilled person could foresee how the patent should be limited to preserve validity and the limitation did not result in a substantially different patent.

In its recent decision Boston Scientific vs. Extendable Grafts Partnership the District Court of The Hague, which has exclusive first instance jurisdiction over patent cases in the Netherlands, has decided that the additional conditions can no longer be imposed after the coming into force of the EPC2000. The amended Article 138 of the EPC2000 gives patentees the right to limit European patents during court proceedings. After an analysis of the legislative history the District Court concluded that for harmonization purposes the legislator meant this right to be unabridged by any possibility to impose additional requirements.

For patentees it is to be hoped that the Dutch Supreme court will confirm the decision of the District Court and will extend it to Dutch national patents obtained outside the EPC.