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 2026

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

The variety of winners demonstrates that the UPC is now a core benchmark rather than an experimental consideration, while junior lawyers are becoming more deeply involved in key work
The Indian government announcing a fee waiver for sports-related IP registrations, and the US adding the EU to its IP 'watch list' were also among major developments
Sources say the judge could return to a disputes or mediation-focussed role, though others have questioned whether the Texas court will remain a litigation hotspot in his absence
Sheppard, which has hired 14 IP partners in the last 12 months, has cited client demand for expert counsel in SEP, ITC, and district court disputes
Tingxi Huo joins our ‘Five minutes with’ series to discuss boosting the value of clients’ IP and the importance of reflection
Hefty legal teams assembled for a three-day hearing in what was the court’s first foray into SEPs since Unwired Planet v Huawei
IP firm's new base will be located inside the tallest office space in the UK's ‘second city’
Practitioners at four firms across Asia and Europe share the do’s and don’ts of mindful networking ahead of the INTA Annual Meeting
Brand Action explains why the IP community can be a force for good in the world as thousands of professionals prepare to head to London for INTA’s Annual Meeting
The firm, which has also hired a senior trademark leader to lead operations in the region, believes greater China to be one of the most important IP jurisdictions
Gift this article