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 power of DEI to swing IP pitches is welcome, but why does it have to be left so late?
Mathew Lucas has joined Pearce IP after spending more than 25 years at Qantm IP-owned firm Davies Collison Cave
Exclusive survey data reveals a generally lax in-house attitude towards DEI, but pitches have been known to turn on a final diversity question
Managing IP will host a ceremony in London on May 1 to reveal the winners
Abigail Wise shares her unusual pathway into the profession, from failing A-levels to becoming Lewis Silkin’s first female IP partner
There are some impressive AI tools available for trademark lawyers, but law firm leaders say humans can still outthink the bots
Lawyers at Simmons & Simmons look ahead to a UK Supreme Court hearing in which the court will consider whether English courts can determine FRAND terms when the licence is offered by an intermediary rather than an SEP owner
Firm says appointment of Jeremy Drew from RPC will help create ‘unrivalled IP powerhouse’, as it looks to shore up IP offering ahead of merger
Law firms are expanding their ITC practices to account for the venue’s growing popularity, and some are seeing an opportunity to collaborate with M&A teams
Erise IP has added a seven-practitioner trademark team from Hovey Williams, signalling its intention to help clients at all stages of development
Gift this article