1. Introduction – Why Is a Patent Essential for Entrepreneurs?
You have spent months – perhaps years – working on a technical breakthrough. A new manufacturing process, an innovative medical device, or a smart sensor that measures something previously thought impossible. The next step is bringing that innovation to market. But without legal protection, any competitor can copy your invention the moment you go public. This is where patents come in.
A patent (in Dutch: octrooi) is a government-granted exclusive right that gives you, as the holder, a monopoly of up to 20 years over a technical invention. It enables you to prohibit others from manufacturing, using, selling, stocking, or importing your invention (Article 53 of the Dutch Patents Act 1995, known as the Rijksoctrooiwet 1995 or ROW 1995). It is one of the most powerful instruments in intellectual property law.
That entrepreneurs increasingly recognise this is reflected in the numbers: in 2024, the number of valid patents in the Netherlands rose to over 273,000. At the same time, the patent procedure is complex, costly, and full of legal pitfalls. In this comprehensive guide, we explain the types of patents available, the eligibility requirements, how the application process works, when your invention is protected, and what to do if someone infringes on your patent.
2. Types of Patents – Dutch, European, and International
As an entrepreneur, you face an immediate strategic choice: where do you need protection? There are three main routes, each with its own characteristics, costs, and scope.
2.1 The Dutch Patent (ROW 1995)
A Dutch patent is applied for at the Netherlands Patent Office (Octrooicentrum Nederland, part of the Netherlands Enterprise Agency, RVO). Protection applies exclusively within the Netherlands. This is often the most accessible first step for SMEs.
The Netherlands operates a distinctive system: the so-called registration system. This means that a patent is, in principle, always granted as long as the application meets the formal requirements, regardless of the outcome of the novelty search. While a prior art search is conducted, a negative result does not prevent the patent from being granted. This may sound advantageous, but it places significant responsibility on you as the applicant: a patent that lacks novelty or inventive step will be invalidated by the court in any dispute (Article 75 ROW 1995). The District Court of The Hague applies strict scrutiny and regularly strikes down weak patents.
Historically, the Netherlands also had a short-term six-year patent (the so-called ‘small patent’), but this type has since been abolished.
2.2 The European Patent (EPC)
If you need protection beyond the Netherlands, the route through the European Patent Office (EPO) in Munich is the logical choice. You file a single centralised application. Unlike in the Netherlands, the EPO conducts a thorough substantive examination of novelty, inventive step, and industrial applicability. Once the patent is granted, you choose in which member states of the European Patent Convention (EPC) you wish to ‘validate’ the patent. This involves translation costs and maintenance fees per country.
Since 1 June 2023, there is a more efficient alternative: the unitary patent. With a single registration, you obtain protection in 18 EU member states simultaneously (including the Netherlands, Germany, and France). Disputes are resolved centrally by the Unified Patent Court (UPC), which avoids fragmented litigation across multiple jurisdictions. As a rule of thumb: up to approximately four countries, individual validation is cheaper; from five countries onwards, the unitary patent becomes more economical.
Overlap Between Dutch and European Patents
An important legal point: if both a Dutch and a European patent have been granted for the same invention to the same inventor with the same filing or priority date, the national patent loses its legal effect as soon as the European patent becomes unassailable (Article 77 ROW 1995). This prevents double protection. Crucially, if the European patent is later (partially) revoked, the national patent does not ‘revive’ (Article 77(2) ROW 1995). This can have far-reaching consequences for your protection strategy.
2.3 The International Route (PCT)
If you have ambitions beyond Europe – think of the US, China, or Japan – the Patent Cooperation Treaty (PCT) is the designated route. A common misconception: there is no such thing as a ‘world patent’. A PCT application is a procedural starting point that allows you to seek patent protection in over 190 countries. The major advantage is that it postpones the decision (and the significant costs) of actually patenting in specific countries by up to 30 months from your first filing.
| Strategic Tip for SMEs: The NL-PCT Route Start relatively affordably with a Dutch application. This secures your priority date. Within 12 months, file a PCT application, buying yourself ample time to explore your market and seek investors before the major cost items for foreign patents arise. |
3. When Do You Qualify? – The Three Requirements
Not every good idea is patentable. The Dutch Patents Act 1995 sets three cumulative requirements. If your invention fails to meet even one of these three, patent protection is not possible.
3.1 Novelty (Article 2(1) ROW 1995)
Your invention must be absolutely new on the date of filing. ‘New’ means that it must not have been made publicly available anywhere in the world – in any form, in any country. This is the most underestimated requirement and simultaneously the most common mistake made by entrepreneurs.
The devil is in the detail: your own disclosures count as well. Have you demonstrated your prototype at a trade fair? Posted a photo on LinkedIn? Discussed your invention in a podcast or at a conference? If so, your invention is no longer novel, and a valid patent is no longer possible. The case law on this point is unforgiving (see, inter alia, ECLI:NL:PHR:2024:1407). A single careless publication can undo months of work.
3.2 Inventive Step (Articles 2(1) and 7 ROW 1995)
Your invention must not be ‘obvious’ to a person skilled in the art in your field. It must contain a solution that an expert would not simply arrive at by combining existing techniques. Courts regularly apply the problem-solution approach: what technical problem does the invention solve, what was the state of the art, and was the proposed solution sufficiently surprising for a skilled person? A patent can be invalidated if the court finds insufficient inventive step (ECLI:NL:RBDHA:2025:11810).
3.3 Industrial Applicability (Article 7 ROW 1995)
The product or process must be capable of being made or applied in industry (including agriculture). A perpetual motion machine that is physically impossible, or a purely scientific theory without practical application, falls outside this scope.
3.4 What Is Not Patentable?
Article 2(2) ROW 1995 explicitly excludes specific categories. Discoveries (establishing something that already exists), mathematical methods, aesthetic designs, business methods, and computer programs ‘as such’ are not patentable. The latter deserves nuance: software that produces a technical effect – for example, software controlling a braking system in a car, or improving image processing in an MRI scanner – can be protected under certain conditions. The decisive factor is the technical contribution the software makes.
Methods for surgical or therapeutic treatment are also excluded, although medical devices and pharmaceutical products are certainly patentable.
3.5 Inventions Made in the Course of Employment
A point that many employees and employers overlook: inventions made in the course of employment belong, in principle, to the employer, provided that it was part of the employee’s duties to develop such inventions (Article 12 ROW 1995). This applies not only to R&D staff but to any employee whose role encompasses developing technical solutions. Always check your employment contract and any supplementary IP clauses.
4. The Procedure Step by Step – From Idea to Granted Patent
Applying for a patent is a formal process in which deadlines are sacrosanct. Below are the chronological steps for a Dutch application. Every missed deadline can have irreversible consequences.
Step 1 – Prior Art Search
Before investing a single euro, you need to establish whether your idea is truly new. Conduct a preliminary search in free patent databases such as Espacenet (the EPO’s database containing over 150 million documents). If you find your invention or something comparable already registered, you save yourself thousands of euros in futile application costs.
Step 2 – Confidentiality
As explained above: confidentiality is crucial until the moment of filing your application. Once your application has been filed, your priority date is secured. From that point onwards, you are free to communicate openly about your invention without jeopardising your patent rights. The application itself remains confidential until publication after 18 months (Article 31 ROW 1995), but the novelty requirement only tests whether the invention was publicly available before the filing date.
If you need to speak with third parties before filing – for instance, for prototype production or financing – always use a watertight non-disclosure agreement (NDA).
Step 3 – Filing the Application
You file the application with the Netherlands Patent Office. This can be done online (€80) or on paper (€120). The most critical component is the patent specification: a document containing a detailed description of the invention, drawings, and the claims. The claims are legally decisive: they define the scope of your monopoly (Articles 24 and 54b ROW 1995). Claims formulated too broadly lead to invalidation; claims formulated too narrowly make it easy for competitors to design around them.
Step 4 – Prior Art Search Request (IPT Search)
Within 13 months of filing (or the priority date), you must request a search of the state of the art (Article 32 ROW 1995). A national search costs €100; an international-type search (IPT, comparable to the search under the PCT) costs €794.
Important: if you fail to file this request or file it late, your application is definitively terminated (Article 32(3) ROW 1995). Reinstatement is only possible in excusable circumstances (Article 23 ROW 1995) and is applied very restrictively in case law (ECLI:NL:RVS:2015:958).
The IPT search report provides an expert assessment of the novelty and inventive step of your invention. Although this report does not bind the court – the court makes its own independent assessment (ECLI:NL:HR:2016:2834) – it serves as an important piece of evidence in any disputes.
Step 5 – Publication After 18 Months
Exactly 18 months after the filing date, your application is entered in the patent register and made public (Article 31 ROW 1995). Until that point, everything has remained confidential. From this moment, the entire world can see what you have invented. This also marks the beginning of your ‘provisional protection’: from publication onwards, you may claim reasonable compensation from parties using your invention without permission.
Step 6 – Grant and Registration
Following formal examination, the patent is granted and entered in the patent register (Article 36 ROW 1995). The protection formally commences on the date the grant is published but has retroactive effect to the filing date (Article 36(4) ROW 1995). This is a crucial legal point: acts occurring before the grant but after the filing date can also constitute infringement.
| Current Development: Legislative Reform Ahead The Netherlands is moving towards a system in which all patent applications will be substantively examined against the patentability criteria. This should improve the quality of Dutch patents and give entrepreneurs greater certainty about the value of their rights, particularly when licensing or attracting investors. |
Step 7 – Maintenance
A patent is not free to maintain. From the fourth year after filing, you must pay annual maintenance fees. These start modestly (approximately €40) but increase to €1,400 in the 20th year. Failure to pay results in the immediate lapse of your patent. It is advisable to set up a reminder system or have your patent attorney manage this.
5. When Is Your Invention Protected – and What Can You Do With It?
5.1 Scope of Protection
The scope of your protection is determined by the claims in your patent specification (Article 54b ROW 1995). The description and drawings serve to interpret these claims. The court assesses the scope of protection from the perspective of the person skilled in the art on the filing date (ECLI:NL:HR:2014:816). Everything that falls within the scope of your claims is your exclusive territory.
5.2 Exclusive Rights of the Patent Holder
As patent holder, you have the right to prohibit third parties from manufacturing, using, stocking, selling, or importing your patented invention (Article 53 ROW 1995). You can also take action against suppliers providing essential means with which your invention can be reproduced (Article 54 ROW 1995).
5.3 Enforcement in Case of Infringement
If your patent is infringed, the law provides a broad arsenal of legal remedies (Article 70 ROW 1995):
- Injunction – including in summary proceedings (interim relief)
- Damages – compensation for the actual loss suffered
- Account of profits – the profits the infringer made using your invention
- Destruction or recall – of infringing products from the market
- Information order – regarding distribution channels and customers
- Publication of the judgment – to inform the market
5.4 Defences Available to the Alleged Infringer
The opposing party is not without defences. The most important defence is the invalidity defence: the argument that your patent is actually invalid due to lack of novelty or inventive step (Article 75 ROW 1995). This defence can be raised in any infringement proceeding (ECLI:NL:HR:2008:BC0375). Other defences include: the product does not fall within the scope of protection, exhaustion of patent rights, or the argument that the alleged infringer was already working with the invention before the filing date (prior user right).
6. Legal Remedies – Refusal, Invalidation, and Opposition
Patent law provides various procedures for situations where something goes wrong, whether with your own application or with a competitor’s patent.
6.1 If Your Application Is Refused
If your Dutch patent application is refused – for example, due to formal deficiencies – you may appeal to the District Court of The Hague (Article 81 ROW 1995). For European patents, appeal is possible before the Boards of Appeal of the EPO within two months of the decision (Article 108 EPC).
6.2 Invalidation of a Granted Patent
Any interested party may file a claim for invalidation of a granted patent before the District Court of The Hague (which has exclusive jurisdiction for patent disputes), particularly on grounds of lack of novelty or inventive step (Article 75(1)(a) ROW 1995). The party seeking invalidation must submit an advisory opinion from the Netherlands Patent Office on the grounds for invalidity (Article 76 ROW 1995). The court’s decision may be appealed to the Court of Appeal of The Hague and subsequently to the Supreme Court (Hoge Raad).
6.3 Opposition to a European Patent
For European patents, opposition may be filed with the EPO within nine months of grant (Article 138 EPC). Additionally, invalidation may be sought before the national court or the Unified Patent Court. This provides competitors with an effective mechanism to challenge weak European patents.
7. Costs – What Does a Patent Cost?
A patent is an investment. The official fees payable to the government are relatively low, but the real costs lie in the expertise of the patent attorney who drafts the patent specification. A poorly written specification renders your patent worthless – economising here is penny wise, pound foolish.
| Route | Indicative Costs |
| Dutch patent (total) | € 6,000 – € 10,000 (incl. attorney) |
| European patent (to grant) | € 10,000 – € 30,000 |
| PCT route (international phase) | € 10,000 – € 15,000 (first 30 months) |
| Annual maintenance fees | € 40 (year 4) rising to € 1,400 (year 20) |
| Summary proceedings (infringement) | € 15,000 – € 30,000 |
| Full proceedings (infringement) | € 50,000 – € 100,000+ |
Grants and Savings
- 30% fee reduction at the EPO for SMEs, micro-enterprises, individual inventors, universities, and non-profit organisations
- SME Fund – an EU subsidy providing vouchers for IP protection costs
- WBSO – a Dutch tax incentive for R&D hours and costs, including expenditures on patent research
8. Common Mistakes and Practical Tips
- Silence is golden. Never disclose your invention before the filing date. No social media posts, no public pitch events, no trade press articles. A single publication can be fatal.
- Engage a patent attorney. An estimated 95% of self-drafted patents provide insufficient legal protection. The cost of a professional attorney pays for itself many times over.
- A deadline is a deadline. In patent law, ‘too late’ comes with consequences. A missed deadline for the prior art search means the end of your application. Reinstatement is exceptional.
- Choose your countries strategically. Only seek protection where your market is or where you manufacture. A patent in a country without competitors or customers is money thrown away.
- Strike the right balance in your claims. Too broad leads to invalidation by the court; too narrow makes it easy for competitors to design around your patent.
- Know the alternatives. For non-technical innovations, copyright, design rights, or a combination thereof may be a better (and more affordable) option.
9. Frequently Asked Questions (FAQ)
What is the difference between an ‘octrooi’ and a ‘patent’?
There is no difference. ‘Octrooi’ is the official Dutch term, and ‘patent’ is the international and English term. In practice, the words are used interchangeably for exactly the same right.
How long does it take to obtain a patent?
In the Netherlands, the process from application to grant takes an average of 18 to 24 months. A European procedure takes longer, typically 3 to 5 years due to the substantive examination. Via the PCT route, you can extend the decision phase to 30 months from the first filing.
Can I patent software?
Software ‘as such’ (the code alone) is not patentable and falls under copyright law. However, if the software forms part of a technical solution or produces a technical effect – for example, improved image processing in an MRI scanner or a more efficient control algorithm for industrial machinery – it may well be patentable. The decisive factor is the technical contribution.
What if someone copies my invention before the patent is granted?
After publication of your application (after 18 months), you may claim reasonable compensation from third parties using your invention without permission. Only after the actual grant can you demand a full injunction, but the protection then has retroactive effect to the filing date.
Do I need to maintain confidentiality until my patent is granted?
No, this is a common misunderstanding. Confidentiality is crucial until the moment of filing. Once your application has been filed and you have a date stamp, your priority date is secured. From that moment onwards, you are free to publish and communicate without losing your rights.
Can my employer claim my invention?
Yes, in many cases. If you make an invention in the course of your employment and it was part of your duties to develop such inventions, the patent right belongs to the employer (Article 12 ROW 1995). Check your employment contract and any IP clauses. In cases of doubt, it is advisable to make arrangements in advance.
What does it cost to enforce a patent in case of infringement?
Litigation is expensive. Summary proceedings (interim relief) typically cost €15,000 to €30,000. Full proceedings on the merits can run to €100,000 or more. On the positive side, the losing party in IP cases often has to pay a substantial portion of the winning party’s full legal costs.
Can a granted patent still be invalidated?
Yes, and this happens regularly. Because the Netherlands operates a registration system without substantive examination, patents are only truly tested when they come before the court. Any interested party may seek invalidation before the District Court of The Hague (Article 75 ROW 1995). For European patents, opposition may also be filed with the EPO within nine months of grant.
What is the difference between the unitary patent and a ‘regular’ European patent?
With a classic European patent, you validate per country individually (translation and fees per country). With the unitary patent, a single registration grants you protection in 18 EU member states simultaneously, with one annual maintenance fee and one central court (the UPC) for disputes. The unitary patent is particularly attractive if you need protection in five or more countries.
10. Conclusion
Applying for a patent is one of the most powerful means of increasing the value of your business and safeguarding your innovations. The Dutch system is relatively accessible, but it requires a watertight strategy: complete confidentiality until filing, a carefully drafted patent specification, strict compliance with all deadlines, and a well-considered country selection.
The legal complexity – from the interplay between national and European patents to invalidity risks and enforcement proceedings – makes expert guidance indispensable. Contact a registered patent attorney or a lawyer specialised in intellectual property to discuss your options and strategy. Innovation deserves the best protection.
Sources
- Dutch Patents Act 1995 (Rijksoctrooiwet 1995 / ROW 1995)
- European Patent Convention (EPC)
- Patent Cooperation Treaty (PCT)
- Regulation (EU) No 1257/2012 (unitary patent)
- Netherlands Patent Office (octrooicentrum.nl)
- Netherlands Enterprise Agency (rvo.nl)
- ECLI:NL:HR:2014:816 (scope of protection)
- ECLI:NL:PHR:2024:1407 (inventive step test)
- ECLI:NL:RBDHA:2025:11810 (invalidation for lack of inventive step)
- ECLI:NL:HR:2008:BC0375 (invalidity defence)
