COVID-19: Courts and IP offices in the Netherlands

Timetables and procedures of courts and IP offices in the Netherlands during COVID-19

In response to COVID-19 and the measures undertaken by the Dutch Government the Dutch courts and the Dutch and Benelux intellectual property offices have been forced to amend their procedures.

Below, we provide you with an overview of the amendments in timetables and procedures at the different courts and IP offices in the Netherlands and Benelux. As this information is continually changing, this information will be updated regularly. This webpage covers the following institutions with regard to intellectual property rights:

• district courts
• courts of appeal
• Dutch Supreme Court
• Benelux Office on Intellectual Property
• Benelux Court of Justice
• Dutch Patent Office.

District courts

The district courts closed on 17 March 2020; since 11 May 2020, they have been gradually reopening. Criminal cases and youth and family matters have priority. The aim of the courts is to increase the number of hearings in the coming weeks. The courts are still rendering judgments and new proceedings can be initiated, but the manner in which the courts and the parties operate has been amended.

The temporary law on COVID-19 has been in force since 24 April 2020. This law retroactively establishes that the courts can use electronic communication means. Oral hearings can take place preferably via video or otherwise via telephone. The temporary law remains into effect until 1 September 2020 and can be extended. 

Court cases can currently be divided into three types:

• Most urgent cases: In the period until 7 April 2020, the district courts would only hear these cases. ‘Spoed kort gedingen’, so-called extremely urgent preliminary proceedings, are included in this category.

• Urgent cases: As of 7 April 2020, the possibilities to conduct an oral hearing through a video connection have been expanded and the courts expect to hear more than the most urgent cases. The type of IP cases that the districts courts and courts of appeal consider as urgent include preliminary proceedings, interim injunctions and prejudgment attachment. Whether they are considered sufficiently urgent cases is decided on a case-by-case basis and depends on the capacity of the individual court.

• 'Regular' cases: If the capacity of the court allows it, hearings will take place.

In all three types of case, the hearing will take place in written form or via telephone/video and, in exceptional cases, in person at the court. In the rare event a hearing takes place in person at one of the district courts, only the parties and their legal representatives can be present. The general public is not allowed. A maximum of three journalists are allowed to be present; there have also been experiments with Skype undertaken, to try to ensure the public nature of court hearings.

Since 9 April 2020, attorneys can email court documents through a new emailing program.

In addition to the general information mentioned above, the following applies for the different types of proceedings:

Preliminary proceedings (kort gedingen)

• New proceedings can be initiated in the usual manner.
• Preliminary proceedings can be considered to be 'urgent' cases, depending on the facts of the case.
• New proceedings can be initiated in the usual manner. Furthermore. the statement of defence, reply, rejoinder and other deeds can be filed in the usual manner. As of April 9 2020. they can also be delivered via e-mail.
• Whether and how an oral hearing takes place depends on the urgent nature of the proceedings.
• The court will deliver judgment in pending cases.

Prejudgment seizure (conservatoir beslag)

• It remains possible to request prejudgment seizure.
• The court has stated that it will take the current pandemic and the (economic) situation into account. It is possible that the judge will request further substantiation in addition to the regular substantiation.
• When the request is granted this will take place in the usual manner.

Accelerated patent proceedings (versneld regime octrooizaken)

• The schedule as provided in the decision on the application of the accelerated patent proceedings remains into place if possible.

The courts of appeal (gerechtshoven)

The courts of appeal divide cases in the same way as the district courts (ie based on the urgency of the matter concerned). As urgent proceedings at the courts of appeal are considered, urgent preliminary proceedings and interim injunctions in proceedings on the merits.

Hearings via a telephone connection are the starting point. Starting from 11 May 2020, the courts of appeal hold oral hearing in person at the court. To decide whether a case has priority for a hearing in person certain criteria have been established. This includes insufficient digital availability of the parties, a multitude of parties, complexity of the case and whether the hearing is aimed at concluding a settlement.

The courts of appeal will apply the following timetables and procedures:

• Appeal proceedings will continue as usual, with the exception of oral hearings as explained before.
• New cases can be brought before the courts of appeal, even if there is a small delay in the time limit for lodging documents at the court registry.
• A request for an extension of time for a procedural act is granted. In the event the counterparty objects the docket judge will decide.
• The minimal time frame for any procedural act is 4 weeks.
• In the event the procedural act does not occur ultimately the day after the docket date, the court automatically grants a 4-week extension, without a request of the parties. This extension is also granted when the regular rules of procedure would not provide for an extension. 
• The courts of appeal will not give judgment on forfeiture of rights.The cause list judge can decide to not apply the abovementioned deviations and to apply the regular rules of procedure. 
• Oral hearings can be suspended. The parties can be asked whether they wish the court to give judgment without an oral hearing having taken place.

The Dutch Supreme Court (Hoge Raad der Nederlanden)

The Dutch Supreme Court is closed to the public until at least 19 May 2020. The regular rules of proceedings and time limits apply. There are no oral hearings planned until 19 May 2020.

Bailiffs (gerechtsdeurwaarders)

Furthermore the Dutch Professional Body of Bailiffs (Koninklijke Beroepsorganisatie van Gerechtsdeurwaarder’) published a statement that serving a summons in person will,if necessary, be done by depositing the summons in the letter box. The usual explanation by the bailiff will then be provided via telephone or email. A legislative proposal to this effect is pending.

The Benelux Office on Intellectual Property (BOIP)

In statements released on 20 March 2020 and 11 May 2020, the BOIP has stated the following on the extension of time limits:

• The BOIP will not reject requests or proceedings when a time limit is not met starting from 16 March 2020 until a to-be-determined time.
• This also applies to opposition proceedings that were filed too late and late payments.
• The BOIP will communicate the date when it determines the regular proceedings resume. This is the so-called 'BAU-date'. In its statement of 11 May 2020, the BOIP stated this date is presumed to be 25 May 2020.
• All requests and proceedings where the time limits are within 16 March 2020 and the BAU-date (25 May 2020), or where the time limit is less than 1 month from the BAU-date, will be granted an additional period of 1 month starting from the BAU-date (25 June 2020). 
• The BOIP will not communicate this extension of time in each specific case.
• The registry of BOIP can show an inaccurate status as the systems of BOIP apply the regular procedures.
• Whether an appeal is filed timely at the Benelux Court of Justice is determined by that Court, not the BOIP.

Benelux Court of Justice (Benelux-Gerechtshof)

The Court Registry is currently closed. New court documents can be deposited in the mail box of the Court Registry. Depositions in the mail box are presumed to have occurred the day before the letter box is emptied. Other court documents can be sent electronically.

The Netherlands Patent Office (Octrooicentrum NL)

In a statement of 27 March 2020, OCNL has communicated it will apply the following time limits and procedures:

• Starting from 27 March 2020, OCNL is no longer open to the public. Documents cannot be physically dropped off, this also applies to couriers. 
• Patent applications can only be filed online via online filing.
• OCNL states it will be lenient with regard to time limits. The time limit for formal requirements is extended by 2 months in the event the regular period of 3 months is not met. 
• OCNL will take into account the extraordinary circumstances caused by COVID-19.
• OCNL has stopped sending letters in EP validation proceedings. They can be found in the online file and will be send via post at a later date. 
• SPC requests and communications must take place via email. Starting from 27 March 2020, it is not necessary to send the original documents via post. 
• Priority documents must be filed electronically and the original documents must later be sent via post.
• OCNL has published which services it is currently unable to provide; this includes registering Dutch patent applications, adding deeds to the patent registry, sending correspondence in PCTproceedings.