COVID-19: statutory patent terms can’t simply be adjusted for no reason

For patent applications and patent holders, the (statutory) time limits and deadlines maintained by the national patent offices are of particular importance. Most national patent offices are fairly accommodating with time limits but that is not always possible with the statutory terms.

The Netherlands Patent Office (OCNL) is as flexible as possible with the time limits and takes full advantage of the scope offered by the Dutch Patent Act 1995. They have extended the formal defects time limits by two months if the standard three months is not met. To accommodate the “hard” statutory terms and to be able to postpone the deadline, both the Dutch Senate and the House of Representatives voted in favor of the proposal for the Tijdelijke rijkswet voorziening Rijksoctrooiwet 1995 COVID-19 (COVID-19 Temporary Provision of the Dutch Patent Act 1995). We are now just waiting for the announcement. Based on this act, the director of the OCNL will be authorized to adjust the time limits retroactively up to 12 March 2020.

The German Patent and Trade Mark Office (DPMA) tries to be lenient where possible. It has therefore moved all time limits to 4 May. All hearings have been delayed until 30 June. The hearings will be rescheduled. Deadlines, for instance for annual fee payments and for submitting objections, remain unchanged.

Regarding the statutory terms, Germany has decided not to implement an amendment of law for extending or postponing the terms.

It is not that different in Belgium. They are not in favor of postponing the statutory terms either. In anticipation of any following crisis, the government is preparing an amendment of law but it will not come into force in the short term. The Belgian Office for Intellectual Property (DIE) temporarily suspended sending letters with their own time limits but has since started again.

The EPO has also taken measures due to COVID-19. Patent application hearings for the Examining Divisions can only be held by video conference. That also applies to hearings in opposition procedures unless the patent holder or opposing party objects. In that latter case, the hearings have been postponed until after 14 September. The Boards of Appeal also uses video hearings. Furthermore, the annual fees, for which the payment date was on or after 15 March can, as an exception, be paid up to 31 August without incurring a fine.

Although hearings via video conferences are an understandable measure, for most patent attorneys it is undeniable that physical attendance at oral hearings has significant added value for patent applications. Should this become the standard work method, then it could be to the detriment of several parties.