The Netherlands: Lack of due care forms impediment for patent restoration
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

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

The Netherlands: Lack of due care forms impediment for patent restoration

Restoration of the omission to pay an annuity fee for the Dutch part of a European patent is only allowable under Article 23 of the Dutch Patent Act if the patent proprietor (and his representative) exercised all due care. This was recently decided in a case between Flawa and the Dutch Patent Office (DPO) before the court in The Hague.

The chief executive of the patent proprietor, Swiss-based Flawa AG, had instructed its (Swiss) agents that the Dutch part of their European patent could lapse by not paying the annuity fee. The actual lapse of the Dutch patent was communicated to the patent proprietor by a decision of January 14 2015. In the appeal of that decision before the Dutch court, the patent proprietor now argued that the chief executive was not authorised to take this decision and that hence the legal consequence of the non-payment of the annuity fee should be undone and the patent should be restored.

However, the Court judged that the provision in the Dutch law should be interpreted similarly to Article 122 EPC in the sense that restoration would only be possible if the non-payment were due to unforeseeable circumstances outside the influence of the patent proprietor. Since in the present case the decision not to pay had been taken deliberately, the provision of Article 23 cannot be used to nullify this decision. The chief executive should be considered to represent the patent proprietor, certainly now that he acted as if he had such power.

This case shows that it is always of great importance to verify whether a decision to discontinue payment of annuity fees is in accordance with the desire of the patent proprietor.

Bart van Wezenbeek


Johan de Wittlaan 7

2517 JR The Hague

The Netherlands

Tel: +31 70 416 67 11

Fax: +31 70 416 67 99

more from across site and ros bottom lb

More from across our site

Malisheia Douglas, who spent six years at Eaton Corporation, said she was attracted by the firm's global footprint
The European Parliament has voted in favour of overhauling the SEP framework, a proposal that has sparked deep division among patent owners and implementers
Daniel Poh talks about his journey to becoming managing partner and how firms can win new business from Chinese companies
Missing a deadline can have serious consequences but law firms should consider being lenient to those responsible
Each week Managing IP speaks to a different IP practitioner about their life and career
CMS, which was told to respond to a cancellation action by February 12 but filed its response a day later, has rowed back on claims about an IT error
The deal could help Rouse gain a foothold in Australia and New Zealand for the first time
With a team of more than 80 patent lawyers and attorneys across 21 European offices, the firm is acting in some of the most high-profile UPC cases
Lippes Mathias has hired three partners and a counsel from Offit Kurman
External counsel for automotive companies explain how trends such as AI and vehicle connectivity are affecting their practices and reveal what their clients are prioritising
Gift this article