The Effects of the Enforcement Directive on Dutch Patent Law: Much Ado About Nothing?
26 Pages Posted: 12 Nov 2010
Date Written: June 9, 2006
The enforcement directive 2004/48/EC (directive), which must approximate the enforcement means, procedures and remedies in the national EU member states to strengthen the substantive law on intellectual property, complements the border control regulation. Rapid technological change and cumulative innovation in combination with patents do not only generate wealth, but inescapably lead to a proportionate amount of patent infringements, which can be in good faith. Because of its indiscriminate character the directive met a lot of criticism, because it allegedly criminalized commercial patent infringements. It also raised questions about the compatibility of its objectives, validity of its assumptions, how opportune the timing was and the added value in comparison to the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPs). It even caused a unique massive intellectual property law professors’ protest1 in 2003 about scope, subsidiarity and proportionality. The directive evolved from an over ambitious draft, including criminal sanctions, the ‘holy grail of enforcement’, to a final version that was stripped bare of any spectacular innovations in comparison to TRIPs and was even called redundant. The comparison with a deus ex machina may force itself upon the imaginative intellectual property rights scholar: the directive entered the European stage at an unexpected time, with artificial content and an improbable character. This paper will hypothesises that the directive does not have a significant impact on Dutch patent law, which is positive.
Keywords: patent law, octrooirecht, Dutch patent law, utility model, enforcement directive 2004/48/EC, TRIPs
JEL Classification: O34
Suggested Citation: Suggested Citation