In contrast to the new patent procedure in France, the Belgian and Dutch patent procedures are remarkably simple and similar.
Although both procedures require a search report, possible objections with respect to novelty and inventive step will not stand in the way of a grant of the patent. This means that applicants fulfilling all formal requirements can be quite certain of the grant of their application for patent protection in Belgium and the Netherlands. When the search report raises objections, it is generally advisable to reply to the search report to have the arguments in the file and defend the validity of the patent. The reply will not be further examined. This lack of examination procedure moreover considerably shortens the road from filing to grant in both countries as compared with obtaining protection through the European patent granting procedure. Often, patents are already granted after 18 months from filing date, offering the possibility of obtaining fast and fully enforceable patent protection both for Belgium as for the Netherlands.
Further, both national governments help to keep the costs for obtaining protection relatively low. Thereto, both provide in relative low fees for obtaining the required search report: the Netherlands has created a “national type” search report as opposed to the more expensive “international type” search report performed by the European Patent Office (EPO) and the search in Belgium, although performed by the EPO, is offered for a considerably lower tax than by the EPO. Moreover, as the Belgian search report in certain cases can be employed in foreign patent procedures, the “cheap” Belgian search report can be used to avoid foreign search fees.
Imagine filing a first Belgian patent application and receiving the search report for that application. Usually that search report is available within 9 months. Subsequently, a Dutch application, accompanied by the Belgian search report, can still be filed within the priority year claiming the priority of the Belgian application without having to pay the Dutch search fee. Next to saving the search fee, as patent applications can be filed in Dutch both in Belgium as in the Netherlands, patent protection in these countries are not even necessarily hindered by translation costs. Additionally, the Dutch procedure is sped up significantly as the required search report is already available upon filing. Probably, both applications will be granted shortly after 18 months from the filing date of the initial Belgian application, depending on when all formal requirements have been met.
Naturally, a further EP or PCT patent application can be filed. In both cases, the Belgian search report can be used, offering the possibility of short-term protection in Belgium and the Netherlands while awaiting the longer-term grant of the EP patent while avoiding having to pay multiple search fees.
Naturally, we are always available to assist you in developing a patent protection strategy suited for your needs and are available for any of your questions.
Jurgen Duyver – European, Dutch and Belgian Patent Attorney