The Dutch Patent Authority has a reputation for setting high standards for the due care that needs to be shown when filing a request for restoration of a patent. Recently, the following case was found allowable.
By an agreement dated April 4 2011, applicant Gijsbrecht of Aemstel Vastgoed BV (the previous owner) transferred shares to Maple Skate BV (the current owner). The agreement also involved a Dutch patent application 1037732. However, as the parties did not realise that a patent application could be transferred, they agreed to transfer the corresponding patent directly after its grant (in The Netherlands patents are automatically granted without substantial examination).
Due to legal complications, the change of ownership as well as the registration thereof involved a considerable delay, as a consequence of which the time limit for payment of the first annuity fee lapsed before the date of registration of the transfer. The previous owner failed to pay the annuity fee before this time limit and the current owner failed to pay the annuity fee with surcharge during the subsequent penalty period.
In response to the request for restoration, the Dutch Patent Authority declared to appreciate that the previous owner failed to pay the annuity fee, considering that it could still be validly paid during the penalty term following the due date, by the current owner at that time. The Dutch Patent Authority also declared to appreciate that the current owner failed to pay the annuity fee with surcharge during the penalty term, on the presumption that the previous owner, who was responsible for the maintenance of the patent, had already timely paid the annuity fee. Taking these circumstances into account, the Dutch Patent Authority considered the request well-founded and decided to restore the patent.
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Dirk de Jong |
V.O.
Johan de Wittlaan 7
2517 JR The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99
