II. Safety net

Yes

Yes, the Netherlands will introduce a 'safety net' in the Patents Act.

For a successful safety net request, the following conditions have to be met:

• the request for unitary effect has to be rejected by the EPO;
• the request for unitary effect had to be filed at the EPO in due time (see art. (1)(g) of Regulation 1257/2012);
• the patent should be void, either due to not filing the translation as prescribed in the Netherlands Patent Act or lapsed due to not paying the renewal fee;
• the safety net request should be filed at the Netherlands Patent Office within two month from either the refusal of the Unitary Patent Protection Division (EPO) or the confirmation of the refusal by the UPC (Court of First Instance of Court of Appeal);
• a copy of the EPO refusal or the UPC confirmation should be enclosed with the safety net request; and
• the translation and the translation fee, if they were not already filed with the Netherlands Patent Office, need also to be enclosed with the safety net request.

(The payment of a filing fee for the safety net request is not foreseen).

If all conditions are met, the Netherlands Patent Office will re-establish the European patent. However, if at the date of notification of a positive decision on the safety net request, renewal fees were due, then these fees (without surcharge) have first to be paid before the patent will be re-established. The fee due (if any) will be mentioned in the decision of the Office. The patent proprietor will have a term of four weeks for paying the fee. After receipt of these renewal fees, the patent will be re-established. The re-establishment will be entered in the Netherlands Patent Register.

The refusal of the EPO or the confirmation by the Court of First Instance of the UPC does not need to be final. The national validation makes third parties aware that the patent proprietor wants protection for his invention in The Netherlands. If at any moment in the future the European patent will benefit from unitary effect, article 4 of the regulation 1257/2012 makes clear that the unitary effect is retro effective as from the date of publication of the grant (which will also be implemented in the Netherlands Patents Act).

A negative decision of the Office on a safety net request can be appealed according the normal procedures.