Europe: Restrictions on the right to amend patent claims

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Europe: Restrictions on the right to amend patent claims

In its decision HIGH POINT SARL v KPN BV, the Dutch Supreme Court held that the right of the patentee to limit a European patent before the national courts, as defined by the European convention (EPC) article 137(3), may be restricted by national procedural conditions. Accordingly, the Dutch courts may refuse to consider limited claims that give rise to a new debate about patent validity after filing the grounds of appeal.

The extent of the right to limit the claims was a matter of interpretation of the EPC. The Supreme Court found that the plain text of article 137(3) EPC did not exclude imposing national procedural conditions on the right to limit the patent. The legislative history did not show an intention to harmonise procedural law in this respect. The legislator introduced article 137(3) EPC only because the right to limit the patent claims was not, or insufficiently, guaranteed in some of the contracting states. Furthermore, the court noted that use of procedural conditions was accepted in other states.

The Supreme Court upheld the criteria used by the court of appeal for denying the right to limit the patent. The court of appeal's reason for denying this right was that the limitation would give rise to a new debate about validity after filing the grounds of appeal. The court of appeal was allowed to find this based on the fact that the added limitation was not used for an elaboration or more accurate definition of an earlier argument, and that it introduced a wholly new element in the proceedings.

Lars de Haas


V.O.Carnegieplein 5, 2517 KJThe HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67 99info@vo.euwww.vo.eu

more from across site and SHARED ros bottom lb

More from across our site

Partners at three law firms explain why trade secrets cases are rising, and how litigation is giving clients a market advantage
Delegates at a conference unpicking the UK’s relationship with the UPC are hopeful of strengthened UK involvement – so should we all be
News of a litigation funder suing its co-founder and a law firm over trade secrets infringement, and a strategic hire by Womble Bond Dickinson were also among the top talking points
Managing IP’s parent company, LBG, will acquire The Lawyer, a leading news, intelligence, and data-driven insight provider for the legal industry, from Centaur Media
In major recent developments, a team of partners broke away from Taylor Wessing to form their own firm, while Kilburn & Strode made a strategic UPC hire
General Court backs Christian Archambeau in some of his challenges against his departure, but dismisses others
Morgan Lewis adds three partners with technical depth, reinforcing the firm’s strategy to bridge legal and tech expertise in patent litigation
The firm posted a 13% increase in profit as well as a rise in overall revenue
Catherine Lee, one of Managing IP’s Top 250 Women in IP 2025, discusses her ‘soft’ approach to leadership and why building a community at work is important
Transactions specialists at Paul Weiss are advising on the high-profile split of Kraft Heinz into two companies, while Skadden is also involved in the deal
Gift this article