Patent Litigation 2024 Comparisons

In Belgium, the different types of intellectual property rights available to protect inventions are patents and supplementary protection certificates (SPCs). Trade secrets, although they are not intellectual property rights as such, are also widely used to protect non-patented inventions.

Patents are based on statutory law, with three types of patent protections available in Belgium:

• national patents – on a national law level, patent rights are organised by Book XI of the Belgian Code of Economic Law (CEL);
• European patents – Belgium is a party to the European Patent Convention (EPC) and European patents are available and widely used; and
• unitary patents – with the entry into force of the EU Regulation No 1257/2012 implementing enhanced co-operation in the area of the creation of unitary patent protection and with the ratification by Belgium of the Agreement on a Unitary Patent Court, unitary patents may also be obtained and be enforced in Belgium since 1 June 2023.

Supplementary Protection Certificates are governed by the Regulation (EC) No 469/2009 concerning the supplementary protection certificate for medicinal products. This regulation is complemented by Title 2 of Book XI of the Belgian Code of Economic Law (see 1.6 Further Protection After Lapse of the Maximum Term).

Patents

There are several ways to obtain the grant of a patent in Belgium.

• The national route – a patent application is filed with the Belgian Office for Intellectual Property. No substantive examination of the patentability requirements is carried out and a Belgian patent will be automatically granted after 18 months from the filing date. A search report with a written opinion on the patentability of the invention will however be drafted by the European Patent Office (EPO) upon the payment of a fee. A Belgian patent will enter into force on the day on which it is made available to the public (ie, on the day it is granted).
• The European route – Belgium is a party to the European Patent Convention (EPC) and a European Patent designating Belgium can be obtained through the filing of a patent application with the EPO. The EPO will first conduct a formal examination (verification of the payment of the fees, etc) and then issue a prior art search report along with a written opinion on the patentability of the invention. Unlike the Belgian national patent, a thorough examination of the patentability requirements will be carried out by the EPO. This procedure is contradictory and the applicant has the right to respond to any objection by the office, including by making amendments to the patent application or by providing arguments to address the issues raised. If the patentability is eventually confirmed, the EPO will publish its intention to grant. After the payment of the corresponding fees and after the necessary translations are provided, the European patent will be granted and published in the European Patent Bulletin. The European patent designating Belgium will then confer the same rights as a national patent. 
• For a unitary patent, the pre-grant phase is the same as for a European Patent and it is granted by the EPO under the rules of the European Patent Convention. Once the European patent is granted, the patent owner has to request unitary effect to obtain the “European patent with unitary effect” that provides uniform protection in all the participating Member States (currently 17, including Belgium).
• The international route – Belgium is a member of the Patent Cooperation Treaty (PCT) and an international patent application can be filed to simultaneously seek protection for an invention in several countries. For Belgium, an international patent application needs to be filed at the EPO and this international route will eventually lead to the grant of a European patent valid for Belgium.

Supplementary Protection Certificate

To obtain a supplementary protection certificate for a medicinal product (including the “paediatric” extension), an application form must be filed with the Belgian Office for Intellectual Property in one of the national languages. This application form must contain a set of information, including the request for the grant of an SPC; a copy of the marketing authorisation (MA) issued in Belgium; and additional information in the event that the Belgian MA was granted after another MA in the European Union. Once the Belgian Office for Intellectual Property confirms that all the required formalities are fulfilled, the certificate is issued and will enter into force on the day of expiry of the basic patent.

Trade Secrets

Trade secrets are not subject to a grant procedure and there is no formal application process. Protection mainly requires the implementation of a set of reasonable measures to keep the information secret. No exclusive rights are granted and the protection offered will enable the trade secrets holder to act against unlawful acts (ie, the unlawful acquisition, use and disclosure of the trade secrets), provided reasonable secrecy protection measures are adopted and can be evidenced.

Applicants are not legally obliged to be represented to initiate grant proceedings before the Belgian Office for Intellectual Property, even though this is almost systematically the case in practice. Belgian patents are automatically granted within approximately 18 months from their application (see 1.2 Grant Procedure).

The costs associated with obtaining a national patent in Belgium can vary depending on several factors, including the complexity of the invention and the time needed to draft the patent application, the services of the patent attorney or agent, and any additional fees that may apply during the patent application process. Average costs to grant in Belgium, including patent attorney fees, range between EUR7,000 and EUR12,000.

Before the EPO, the overall timing from application to grant will largely depend on a set of various factors (eg, the complexity of the invention, the extent of examination required, the challenges and objections raised by the examiner, etc) and usually lasts between three and five years. Average costs to grant, up to validation in Belgium, may vary greatly and range usually between EUR10,000 and EUR20,000 (including patent attorney fees). Patent applicants do not need to be represented for the filing of a European patent application but any natural or legal persons not having their residence or principal place of business in an EPC contracting state will need to be represented in all proceedings established by the EPC.

The term of protection for Belgian national patents, European patents and unitary patents is 20 years as from the filing date of the application. To maintain the patent in force, taxes need to be paid annually.

Patent term extensions of up to five years can be obtained via supplementary protection certificates (SPCs) for certain medicinal and plant protection products. The paediatric extension may extend the lifetime of an SPC granted for a medicinal product for an additional six months.

The protection of trade secrets is not limited in time and remains for as long as the information is kept secret.

A patent confers exclusive rights to its owner, which means that the patent holder has the right to exclude others from exploiting the invention in Belgium if done without its express consent (ie, the right to prohibit the use, making, offering, placing on the market, importing or stocking a patented product for that purpose; prohibit the use of a patented process or prohibit to offer its use on the Belgian territory if the third party knows or should have known that the use is prohibited; prohibit to offer, place on the market, use or import or hold for these purposes a product obtained directly by a patented process in Belgium).

Accordingly, a patent owner has the following rights in Belgium.

• Take legal action against any third party that infringes its patented invention. This may involve seeking damages, injunctive relief, and other corrective measures before the Belgian courts.
• Licensing – the patent holder may license the patented invention, on an exclusive or non-exclusive basis, and authorise its use under certain conditions (including financial).
• The right to assign the patent to another party, allowing the latter to take over the ownership of the patent rights.
• The right to pledge a patent and to grant an usufruct.
• The right to abandon a patent.
• The obligation to pay maintenance fees (annual fees need to be paid to maintain the patent in force).
• Under certain conditions, the obligation to grant a compulsory licence (see 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property).

As mentioned under 1.4 Term of Each Intellectual Property Right, after their maximum term has lapsed and under certain conditions, the term of certain patents for medicinal and plant protection products may be extended for up to five years via supplementary protection certificates, and for an additional six months for certain medicinal products through the paediatric extension.

The protection granted by an SPC extends only to the product covered by a marketing authorisation (it must be the first marketing authorisation of the product as medicine), within the scope of protection conferred by the basic patent, for any medicinal use of the product authorised before the SPC has expired.

The extension of the protection granted by an SPC aims at compensating the exclusivity loss during the long regulatory approval process required to put a medicinal product on the market, and the paediatric extension aims at fostering R&D investments in the development of medicinal products designed for children.

In the Belgian national route, third parties have no right to intervene in the grant proceedings.

In the European route, during the examination phase and after the publication of the European patent application, third parties have the right to submit observations to the EPO concerning the patentability of the invention to which a European patent application relates. The observations will become part of the file and are communicated to the applicants who will have the opportunity to comment and challenge them.

In the national route, Belgian patents are automatically granted (there is no refusal to grant and hence no remedies foreseen).

In the European route, should the EPO refuse to grant a European patent, the applicant may lodge an appeal with the EPO’s Boards of Appeal and the board will act as the department of final instance in the grant procedure. The appeal must be filed in writing within two months of the notification of the contested decision.

The Boards of Appeal may eventually decide to correct the decision or to remit the case to the relevant department for further prosecution.

Failure to pay the annual fees will lead to the expiry of the patent and the rights conferred by the patent will lapse.

In Belgium, a grace period of six months is foreseen as from the last day on which the annuity must be paid, and the payment of an additional tax is required. Failure to pay the annual tax within the grace period will lead to the forfeiture of the patent.

A restoration procedure is however available before the Belgian Office for Intellectual Property, under certain conditions. If the restoration is granted, the legal consequences of the failure to pay the annual fees are deemed not to have occurred and the patent as having never ceased to have effect.

In Belgium, after the grant of a national patent, it remains possible for the patent owner to amend its patent either by virtue of a court decision handed down in the scope of invalidity proceedings and concluding to partial invalidity, or by virtue of an ex parte request for a partial waiver.

Before the EPO, a patentee may request ex parte the limitation or revocation of its European patent, to have the granted claims limited or to have the whole European patent revoked for all the designated states. The request may be filed at any time after grant (including after opposition proceedings).

Civil Proceedings on the Merits

Belgian law provides for a regular and an accelerated infringement proceedings on the merits. The main differences between both proceedings are the timeframe and the possibility to obtain compensation for the damage resulting from the infringement.

Accelerated proceedings enable the initiation of a procedure to obtain injunctive relief on the merits, within a faster timeframe. There is no urgency requirement, but no damages may be claimed. Any damage compensation will require the subsequent launch of a regular proceeding on the merits. The president of the Brussels Enterprise Court is competent and the duration to obtain a first instance decision usually ranges between six and ten months.

In regular proceedings, the patentee may claim damages and is entitled to full compensation if the infringement is confirmed (the entire damage must be compensated, no more and no less, and punitive damages are not allowed). The duration to obtain a first instance decision before the Brussels Enterprise Court usually ranges between 18 to 24 months.

Preliminary Injunction (PI) Proceedings

Both inter partes and ex parte PI proceedings are available under Belgian law to obtain interim injunctions pending a decision on the merits. The PI judge may order a variety of measures that can limit, stop, or avoid the damage resulting from the alleged infringement (including an injunction to stop the commercialisation and/or the advertising of the product, a product recall, or under certain circumstances the seizure of the allegedly infringing goods). Injunctive relief may be sought on an ex parte basis in cases of exceptional urgency and provided that the measures sought are “absolutely necessary” (see 2.7 Interim Injunctions).

Criminal Proceedings

Criminal proceedings are available in Belgium under certain conditions. To constitute a criminal offence, the infringement must take place within a commercial context and be committed with malicious or fraudulent intent. Criminal proceedings are rather exceptional in patent cases.

Customs

Customs seizures are organised by Regulation (EU) No 608/2013 and enable customs authorities to block the entry into the territory of the European Union of goods “suspected of infringing an IP right”. If there are reasonable indications that there is infringement, the customs authorities may suspend the release or detain such goods at the border. Once blocked, the goods may either be destroyed (absent opposition of the owner) or, if the conditions for destruction are not fulfilled, the patent or SPC owner must initiate judicial proceedings to establish the alleged infringement. The customs authorities may intervene either on their own initiative (unlikely in patent/SPC cases) or at the request of the owner of the patent or SPC right.

Several remedies are available to third parties to remove the effects of patent rights in Belgium.

Nullity Action of a Belgian Patent or of the Belgian Part of an EP Patent

Granted patents (a Belgian patent or the Belgian part of an EP patent) benefit from a rebuttable validity presumption in Belgium but may be invalidated in whole or in part by the competent court if proven to be invalid. Nullity actions may be brought before the Brussels Enterprise Court by anyone having a legitimate interest, which interest is usually easy to establish since a patent may be enforced against anyone. Invalidity grounds are enumerated in the patent law and will need to be evidenced by the claimant seeking to invalidate the patent. If invalidated, the final and binding nullity decision will eventually be recorded in the Belgian patent registry.

For the Belgian part of an EP patent, nullity actions can be filed before the Brussels Enterprise Court in parallel with an opposition proceeding before the European Patent Office. The Belgian nullity proceeding will not be automatically stayed pending the resolution of the opposition (the stay is possible on request but is a matter of circumstances and largely refused).

If not opted out, the Belgian part of an EP patent can be invalidated either before the Brussels Enterprise Court or the Unified Patent Court. A unitary patent may be revoked by the Unified Patent Court.

Declaration of Non-infringement Action (DNI)

A pre-emptive DNI can be filed in Belgium by anyone having an interest to act – ie, the action must prevent the violation of a right which is seriously threatened. The threat must be established by the claimant and must be real and not merely theoretical in the sense that it must cause a specific disturbance to the plaintiff. Receiving a cease-and-desist letter and/or having parallel infringement proceedings pending in other jurisdictions will usually suffice to establish the interest to act.

Compulsory Licence

Compulsory licences may be imposed on the patentee by the Belgian Minister of Economic Affairs following a rather complex administrative procedure organised by law. The legal bases for a compulsory licence are enumerated in the law and include the situation where an invention is not being exploited, where the exploitation of an invention is dependent on another patented invention, or in the interests of public health. The grant of such compulsory licence is rather theoretical in Belgium.

In Belgium, all patent disputes are handled by the Brussels Enterprise Court which has exclusive jurisdiction. Most judges have no technical background but this centralisation of patent cases allows a certain degree of specialisation of the competent judges. Proceedings will take place in either French or Dutch and, in some instances, strategic decisions will need to be made to bring the case before either the French or the Dutch Brussels Enterprise Court.

Appellate proceedings are handled by the Brussels Court of Appeal.

In third instance, the Belgian Supreme Court (Hof van Cassatie or Court de Cassation) is competent. This court does not rule on the merits of a case and only assesses the correct application of the law in the decisions rendered on appeal.

For the Belgian part of the European patents that have not been opted-out, disputes may be brought either before the national courts (in this case the Brussels Enterprise Court), or the Unified Patent Court (UPC). For unitary patents, the UPC is exclusively competent. The UPC has a local division in Brussels.

There are no specialised bodies or organisations for the resolution of patent disputes in Belgium.

In Belgium, there is no formal requirement to issue a formal demand or cease and desist letter prior to filing a lawsuit. In practice, however, this is done in most cases.

If the judge considers that there is an opportunity to bring the parties closer together, and unless all parties disagree, the judge may order the parties to engage in mediation in the early stages of the proceedings (ie, after having heard the parties at the introductory hearing, or at a postponement hearing set shortly after the introductory hearing, or at a hearing set within one month of the filing of the first written submissions of the defendant).

An exclusive licensee may, under certain conditions, initiate a patent infringement proceeding but only after the registration of the patent licence with the patent office (the registration formality is required to render the licence opposable to, and hence enforceable against, third parties).

The parties in patent disputes need to be represented by lawyers who have a monopoly of representation in Belgium. Patent attorneys will soon have the right to intervene in patent disputes to provide written or oral explanations on factual matters, technical or patent law issues, but without prejudice to the role of the lawyers who remain in charge of the proceeding as dominus litis.

Interim injunctions are available under Belgian law, both inter partes and ex parte, with several measures being available to limit, stop, or avoid the damage resulting from the alleged infringement. The president of the Brussels Enterprise Court is competent for both inter partes and ex parte preliminary injunctions or PI proceedings. The timing of an inter partes PI proceeding in Belgium is usually around two to four months and first-instance PI measures are enforceable despite a pending appeal. The timing to obtain an ex parte decision is much shorter and usually a matter of a few days.

Obtaining a preliminary injunction requires establishing that (i) there is urgency; (ii) the patent right invoked is prima facie valid; (iii) there are indications of (imminent) patent infringement; and (iv) in some cases that the balance of interests is in favour of the right-holder. The judge will verify in concreto whether these requirements are met (arguments will be disregarded if they go beyond the prima facie examination of the PI proceedings).

European Patents (EP patents) enjoy a presumption of prima facie validity in Belgium and case law is rather pro-patentee, since a granted EP patent will – in principle – be deemed valid and enforceable as long as it has not been revoked by a final decision of the EPO or a Belgian court. Even weak patents therefore carry the risk to be successfully enforced through a PI. The PI judge must however take all the facts and circumstances invoked by the parties into account in its prima facie validity assessment.

The urgency requirement – ie, that irreparable harm will be sustained if immediate measures are not taken – is central in interim procedures and the concrete circumstances of the case are crucial to this assessment. Belgian case law tends to consider that there is urgency when a risk of patent infringement is established.

The urgency requirement is more stringent to obtain ex parte interim injunctions. Exceptional urgency must be evidenced and the patent holder will need to prove that the measures sought are “absolutely necessary”; ie, that there is extreme urgency, or that the very nature of the measure requested requires the use of a unilateral procedure to guarantee its effectiveness. This extreme urgency requirement is assessed very strictly by the court and must remain exceptional.

Interim injunctions are limited in time and the right-holder will need to start proceedings on the merits within a certain timeframe.

In Belgium, protective letters may be filed but are not organised by law and the competent judge has no obligation to take them into account. Protective letters are regularly filed when a party fears being the target of a descriptive seizure with effective seizure measures. The main objective of such letter is to be heard by the competent judge and provoke an inter partes debate before the requested measures are granted, to enable the targeted party to challenge such grant and to avoid the surprise effect if granted.

The competent judge may submit the grant of interim measures to the posting of a bond, but this is not automatic.

Patent infringement proceedings are time-barred after five years from the date on which the infringement was committed. For damages, the compensation claim will be time-barred after five years from the day following the moment the patentee or SPC owner has had knowledge of the infringement (with a maximum of 20 years following the date on which the infringement was committed).

In a pending proceeding, a party may ask the judge to order the production of certain well-identified documents that contain the proof of a relevant fact useful for resolving the dispute. The production will only be ordered if there are “serious, precise and concordant presumptions of possession by the party of a document containing evidence of a relevant fact”.

The Belgian descriptive-seizure proceedings enable the collection of evidence of an alleged patent/SPC infringement. Descriptive measures are obtained on unilateral request, either before or after infringement proceedings have begun, and are commonly granted in Belgium (most infringement cases are preceded by a saisie). The timing to obtain a decision ranges between two to three days and one week. 

The requirements are straightforward and the patent or SPC holder will need to demonstrate (i) that the patent invoked is prima facie valid, and (ii) that there are indications (not evidence, only a mere indication) that the patent has been infringed or that there is a threat of patent infringement. Indications of infringement are a matter of circumstances, that can be established by all legal means.

If granted, an expert will be appointed by the court and entrusted with the mission to arrive by surprise at the premises of the infringer (or at any place in Belgium where evidence of the alleged infringement could be found) to collect information on the alleged infringement and its scope. The expert will subsequently file a confidential report describing its findings and the patentee will have to launch an infringement action on the merits, within a certain timeframe (failing to do so will cancel the measures granted and the right-holder will no longer be allowed to use the report in court).

The initial pleading standards in Belgium to initiate a lawsuit requires a clear and plausible statement of the facts that support the claim, with the corresponding evidence. In the course of the proceeding, the parties will file several rounds of written submissions, with the possibility to supplement the pleadings with additional arguments and new evidence. The initial claim can even be extended or modified during the proceeding under the condition that any new claim is based on a fact or an act contained in the initial writ of summons.

The Belgian legal system theoretically permits class actions in case of an alleged violation by an undertaking of the laws listed in Article XVII.37 of the CEL, which includes Book XI CEL that covers “Intellectual Property Rights and Trade Secrets”. Such class actions must be brought on behalf of a group of consumers or of small and medium-sized enterprises that have been harmed by the alleged violation. The claim must be filed by a group representative meeting certain conditions set by the CEL and the recourse to a class action must appear as more efficient than an ordinary law proceeding. The possibility to bring class actions seems rather limited in patent cases.

The owner of a patent may be restricted in asserting its rights against others based on the abuse of rights principle. As a general principle of Belgian law, a patent owner may not abuse its rights and cannot exercise them to gain an advantage which is totally out of proportion with the prejudice this causes to others. Under certain circumstances, in case the patent owner has several ways to exercise its right, it cannot do so in a way that is most harmful to others without this choice being justified by a sufficient interest on their part. 

The exercise of an IP right, by a dominant undertaking, does not in itself constitute an abuse of dominant position (see CJEU 30 January 2020, Case C-307/18, EU:C:2020:52, Generics) but under specific circumstances an IP holder may be limited to assert its rights if the assertion qualifies as an abuse of dominant position (under competition law). In case of Standard Essential Patents, the refusal to grant a FRAND licence can, in certain circumstances, constitute an abuse of dominant position. FRAND case law is not developed in Belgium.

In one case, recently overturned on appeal, the judge considered in the first instance that the refusal to grant a licence constituted an abuse of economic dependence and imposed the grant of a non-exclusive licence in Belgium under certain conditions.

The principle of res judicata also applies and a claim which has been judged on the merits cannot be re-litigated.

The owner or usufructuary of a patent is entitled to bring an infringement action.

In the event of co-ownership, and unless otherwise provided in an agreement, a co-owner may only launch an infringement action with the agreement of the other co-owner(s) or, in the absence of such agreement, with the authorisation of the court.

In the event of patent assignment, the assignee may initiate infringement proceedings, but only after the registration of the assignment in the patent register.

In the event of an exclusive licence, the licence must also be registered in the patent register to make it enforceable against third parties, and the exclusive licensee will have the right to launch an infringement action if, after formal notice to the patentee, the latter has failed to launch such action. The same rule applies in case of compulsory licences.

After registration of the licence with the patent register, any licensee (exclusive and non-exclusive) is entitled to intervene in an infringement proceeding brought by the owner or usufructuary of the patent to obtain compensation for their own losses.

Under Belgian law there is a difference between direct and indirect infringement.

Direct Infringement

If committed on the Belgian territory without the patentee’s consent, a patent owner can prevent a third party from: 

• manufacturing, offering, placing on the market or using any product covered by the patent, or importing or stocking such product for that purpose;
• using a process which is the subject matter of the patent or, if the third party knows or should have known that the use of the process is prohibited without the consent of the patent owner, offering its use on the Belgian territory; and
• offering, placing on the market, using or importing or holding for these purposes a product obtained directly by a process which is covered by the patent.

Direct infringement requires that all the features of the asserted patent claim are implemented in the infringing product or process (see 3.4 Scope of Protection for an Intellectual Property Right for the infringement by equivalence).

Indirect Infringement

The patent owner can also act against indirect infringement and prevent any third party from supplying, on Belgian territory, without its consent, means of implementing the patented invention that relate to an essential element of the invention, provided that the third party knows or should have known that those means are suitable and intended for such implementation. This does not apply when such means are commonly available on the market, unless the third party induces the person to whom they supply to commit an act of infringement.

Products directly obtained by a patented process benefit from the same protection as patented products. Belgian law explicitly provides that “offering, placing on the market or using, or importing or possessing for the aforementioned purposes, the product obtained directly by the process covered by the patent”, constitutes an act of infringement. Importing a product that is directly obtained by a patented process, if performed overseas, therefore constitutes an act of infringement and opens a right to act in Belgium. Whether the process to manufacture the product was legitimately performed overseas is irrelevant in this regard.

Belgian law provides for a reversed burden of proof mechanism for process patents when the product obtained via the patented process is new and the alleged infringer is putting an identical product on the market. In such case, the identical product will be presumed to be obtained through the patented process and will be deemed infringing. To benefit from this mechanism, the patent holder must prove:

• that the product is new – the “novel” character of the product is not defined by law and Belgian case law is divided on this notion, some case law considering it to be equivalent to the “novelty” patentability requirement, while other decisions considering it as a distinct notion; and
• that the products are identical – the identity requirement is not defined by law but applied quite strictly by the courts.

The scope of protection conferred by a patent is determined by the claims while the description and drawings are used for their interpretation. What is clear from reading the claims does not need to be interpreted (it is only in case of ambiguity that the claims will need to be interpreted). Patents should in principle be interpreted restrictively, with the willingness to understand the claims, and an interpretation that makes technical sense will be favoured over a nonsensical one.

The doctrine of equivalence is applied in Belgium, which means that the scope of protection is determined by the wording of the claims and by potential equivalents (provided certain requirements are fulfilled). The majority of Belgian case law applies the “function-way-result” approach. To determine whether there is infringement by equivalents, the court will verify if (i) the (essential) feature in question has substantially the same function, (ii) whether it performs the function in substantially the same way, and (iii) whether the feature leads to substantially the same result.

Belgian case law generally admits a defence based on the prosecution history estoppel and a patent holder cannot invoke a scope of protection in the context of infringement allegations that would contradict limiting statements made during the patent grant proceedings to distinguish its invention from prior art. An alleged infringer can therefore challenge an alleged infringement by equivalents based on the EPO prosecution file and possible limitations made during prosecution.

In Belgium, the prior use defence is available and organised by law. It requires from the alleged infringer to demonstrate that it used or possessed the invention object of the patent, in Belgium, in good faith, prior to the filing or priority date. The prior possession of the invention must lead to a full and practical knowledge of the invention that enables its use before the filing/priority date. The prior use must be certain and not ambiguous and must have taken place in Belgium. This defence is intuitu personae and only the legal entity that can evidence that it used or possessed the invention in good faith in Belgium can benefit from the exception.

Belgian case law also recognises the Gillette-defence (also known as “Formstein defence”), which is a hybrid defence between invalidity and non-infringement that consists in claiming that the alleged infringer merely implements the state-of-the-art, or a non-inventive variant thereof. If confirmed, this defence will result in a lack of infringement or, alternatively, in the invalidity of the patents invoked since they would merely reflect the prior art.

The compulsory licence defence is also available, including where the exploitation of an invention is dependent on another patented invention, but this is seldom used and rather theoretical (see 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property).

Patent exhaustion is also an available defence under Belgian law and the rights conferred by a patent do not extend to acts concerning a product, which are performed on the Belgian territory after that patented product was placed on the market in a European member state by the patent owner or with their express consent.

Other exceptions to the rights conferred by a patent may be invoked as defences. These include among others the Belgian research exemption or “exemption for experimental use” which has recently been modified to align with the provisions of the Agreement on a Unitary Patent Court. In the pharmaceutical field, the Bolar exemption allows carrying out the necessary studies, tests and trials to obtain regulatory approval in Belgium or the EU, for biosimilar or generic products for human use. In addition, since the recent modification of the Belgian research exemption regime, all acts done for the purpose of evaluating a medicine shall be regarded as acts done for experimental purposes and hence do not constitute acts of infringement.

Patent disputes often involve technically complex issues, while Belgian judges usually do not have technical backgrounds. In Belgian patent disputes, the court may appoint a judicial expert to obtain a (non-binding) opinion on specific technical questions to be decided. Such opinion may cover a variety of issues, including the validity and infringement or the assessment of damages. Judicial experts are appointed at the discretion of the judge, either on their own initiative or at the request of a party. The parties will be allowed to take position and challenge or confirm the conclusions of the expert, which is why expert appointments often increase the length (and costs) of patent proceedings.

Any party to a Belgian proceeding may support its position and argumentation with experts’ statements, as part of its obligation to prove the facts it alleges.

In Belgium there is no separate procedure for construing the terms of the patent claims. Issues related to the validity of the patent, the construction of the claims and the infringement of a patent are handled within the same proceedings.

In Belgium there is no system through which the court may seek or receive third-party opinions (amicus brief).

In Belgium, the revocation/cancellation of a patent can be requested independently in a nullity procedure or through a counterclaim in the context of an infringement action.

The reasons to seek the nullity and revocation of a patent are :

• the subject matter of the invention is not patentable (excluded patentable subject matter include discoveries, scientific theories and mathematical methods; aesthetic creations; plans, principles and methods for carrying out intellectual activities, games or economic activities, as well as computer programs; presentations of information);
• the invention does not meet the patentability requirements of (i) novelty, (ii) inventive step, or (iii) is not susceptible of industrial application;
• the patent does not contain a sufficiently clear and complete description of the invention to enable a person skilled in the art to carry out the invention;
• the claims contain added subject matter – ie, the claims are not covered by the content of the patent application; and
• the patent holder was not entitled to the patent.

The claimant seeking to invalidate a patent in a Belgian proceeding must have a legitimate interest in doing so, which is hardly difficult since a patent may be enforced against anyone.

The Unified Patent Court is competent for actions for revocation of patents and SPCs and counterclaims for revocation of patents and SPCs of European patents which have not been opted out, and for unitary patents. The EPC is the main source of law concerning the validity of a patent before the UPC.

Partial revocation or cancellation of a patent is possible in Belgium if the grounds for invalidity affect the patent only in part. In such case, the patent is declared partially invalid and the claims will be amended, as will be the description and drawings, where applicable.

In revocation or cancellation proceedings, either in the context of a nullity action or of a counterclaim seeking to invalidate the patent, the amendment of the scope of the patent is possible, provided that this does not lead to an extension of the scope of protection. The claims will be amended with the description and drawings, where applicable.

There is no bifurcation system in Belgium and revocation or cancellation and infringement claims are heard together, in a single proceeding before the Brussels Enterprise Court.

Before the UPC, the central division is in principle competent for revocation cases concerning unitary patents and European patents which have not been opted-out. However, the system is more complex and, in case an infringement action is pending, the revocation claim will need to be filed before the same local division in charge of the infringement case. The local division will then have the choice to proceed with both infringement and revocation claims, or go for bifurcation and transfer the revocation action to the competent Central Division, or transfer the whole case to the Central Division (if all the parties agree).

As explained under 2.1 Actions Available Against Infringement and 2.10 Mechanisms to Obtain Evidence and Information above, in Belgium there are mainly two specific procedures for intellectual property rights, which are respectively:

• the Belgian descriptive-seizure proceeding that enables the collection of evidence of an alleged patent/SPC infringement. Descriptive measures can be obtained on an ex parte basis (to guarantee a surprise effect), in a matter of days (between two-to-three days to one week), at any time before or after the launch of an infringement proceedings; and
• an accelerated infringement proceeding on the merits (action en cessation). Though not limited exclusively to intellectual property rights proceedings, this procedure enables to obtain injunctive relief on the merits, within an accelerated timeframe (six to ten months) but without the possibility to claim compensation (this will require the filing of a subsequent procedure on the merits).

In Belgium, all patent disputes are handled by the Brussels Enterprises Court, which has exclusive jurisdiction. The seat of the court will be constituted exclusively by legal judges (no technical judges are involved and disputes are not determined by a jury). As pointed under 2.3 Courts With Jurisdiction, this centralisation allows for a specialisation of the judges even though they have no technical background.

At any time during the proceeding, patent disputes can be settled by the parties provided they agree on the terms of a settlement. The corresponding agreement may then be submitted to the court seized of the dispute in order to record the settlement agreement, thereby ending the dispute. The settlement agreement and resulting judgment will in principle be binding on the parties and will not be subject to appeal.

As explained under 2.5 Prerequisites to Filing a Lawsuit, unless all parties disagree, the judge may order the parties to engage in a confidential mediation in the early stages of the procedure. In case an agreement is reached, the mediation agreement will be submitted to the court by the parties, or by either of them, for homologation. The mediation agreement and resulting decision will then be binding on the parties and may not be appealed.

In Belgium, an infringement case may be stayed pending resolution of an opposition proceeding before the EPO. This is not systematic and usually requires the agreement of all parties to the procedure.

Parallel revocation/infringement proceedings in other jurisdictions are unlikely to influence a pending infringement proceeding before the Belgian courts.

Anti-suit injunctions are prohibited under Belgian law.

In Belgium, in case a patent or a supplementary protection certificate is found to be infringed, the judge will order the persons liable for infringement to cease the infringement activities (permanent injunction).

In a regular infringement proceeding on the merits, the judge will, on request, also order the compensation of the patentee for all the damages resulting from the infringement. Punitive damages are not allowed in Belgium and the rule is that the patent/SPC holder must be fully compensated for any damage sustained; ie, the patent/SPC holder must be restored to the same state as if the infringement had not occurred, nothing more, nothing less. In the event of bad faith, the judge may order the transfer of all or part of the profits made from the infringement to the patent/SPC holder.

In addition, the judge may order a set of measures which are likely to contribute to the cessation of the infringement (both in a regular and an accelerated infringement proceeding on the merits) and/or which are likely to contribute to the compensation of the damage (only in a regular infringement proceeding on the merits). At the request of the party entitled to bring the infringement action, such measures may include:

• the recall of the infringing goods from the trade channels, the final withdrawal from trade channels or the destruction of the infringing goods, as well as, where appropriate, of the materials and tools used principally for their manufacturing;
• the order to provide the patentee/SPC holder with all the information it has on the origin and distribution networks of the infringing goods or services and to communicate all data relating thereto (subject to a proportionality assessment); and
• the publication or display of the decision, or of a summary thereof, in newspapers or in any other manner including on the infringer’s website, at the infringer’s expense.

Remedies can be enforced after the decision is served on the losing party and are usually granted with penalty payments as sanctions against non-compliant defendants.

In patent disputes, the prevailing defendant will in principle be entitled to recover the costs of the procedure, including a statutory lump sum to cover its lawyer’s fees (based on the value of the dispute, see 8.3 Responsibility for Paying the Costs of Litigation); the technical advisor’s and expert’s fees (including patent attorney fees); and monetary compensation for any damages suffered if the defendant can prove that the patent/SPC owner committed a fault by initiating the infringement proceeding (there is no objective liability and the threshold to establish the fault is high, which makes such monetary compensation difficult).

In Belgium, the same remedies apply as listed under 6.1 Remedies for the Patentee. There are some variations for trade secrets due to the different nature of this right, including in the corrective measures that may be ordered by the judge. As an example, the judge may order “depriving the infringing goods of their infringing quality”, and can prohibit the obtention, use or disclosure of trade secrets and order the prohibition to produce, offer, place on the market, use, import, export or stock for those purposes, of the infringing goods.

In Belgium, the rule is that first-instance decisions are provisionally enforceable pending appeal, at the risk of the enforcing party. Unless otherwise provided in the court decision, injunctions will therefore be enforceable even if an appeal is lodged.

The opposite rule applies in nullity proceedings. If the patent is revoked (partially or totally) in the first instance, the appeal will have suspensive effect.

There are no special provisions concerning the appellate procedure in patent or SPC disputes. The appeal is available to all parties to a procedure, and for patent cases, must be brought before the Brussels Court of Appeal within one month of the service of the first-instance decision.

The appeal implies a full review of the facts of the case and is not limited to a legal review. The initial claim may even be extended or modified, and new evidence can be submitted.

In third instance, as stated under 2.3 Courts With Jurisdiction, the Belgian Supreme Court is competent and does not rule on the merits of a case. Only a legal review will be carried out.

The costs that arise before filing a lawsuit vary from one case to another and are mainly caused by the intervention of the lawyers, patent attorneys, and experts that will be working on the preparation of the case (including for assessing the merits of the case, analysing the patents/SPC and the products or processes at stake, collecting relevant evidence, engaging experts, and undertaking pre-litigation actions such as warning letters or protective letters, as well as drafting the writ of summons).

In Belgium, the court fee for commencing proceedings are statutory fees, the amount of which depends on the competent court. Before the Brussels Enterprise Court competent in patent and SPC matters (see 5.2 Decision-Makers), these fixed fees amount to EUR165 in the first instance. These fees will eventually be borne by the losing party. 

The losing party will be responsible for paying the costs of litigation, such as court fees, expenses and lawyers’ fees. The reimbursement of the lawyers’ fees of the prevailing party is however made through the payment of a statutory lump-sum known as a “procedural indemnity” which is determined by law and mainly based on the amounts in dispute. In practice the procedural indemnity is largely insufficient to cover the effective lawyer’s fees (and the prevailing party cannot claim the reimbursement of its actual legal lawyer’s fees beyond the procedural indemnity). 

Alternative Dispute Resolution (ADR) methods, including mediation and arbitration, are generally voluntary and all the parties must agree to settling their intellectual property dispute through these mechanisms.

Belgian law explicitly provides that parties may settle patent disputes relating to ownership, validity or infringement, as well as to patent licences (other than compulsory licences) through arbitration. Arbitration procedures are confidential and faster, but will be more costly.

The traditional litigation route is, however, more commonly chosen for patent and SPC disputes, since Belgium enjoys a well-established legal system, with specialised patent judges that contribute to the trust placed in the judicial litigation route.

Under Belgian law, the assignment of patents must be done in writing to be valid.

To be enforceable against third parties, the assignment must then be notified and registered with the Belgian Office for Intellectual Property. The assignment is, however, enforceable before its recordation with the Office against third parties who acquired rights after the assignment date but had knowledge of the assignment when they acquired these rights.

In case of co-ownership, each co-owner has a pre-emption right for a period of three months as from the notification of the proposed sale, unless otherwise provided in a co-ownership agreement.

The price paid for the transfer of ownership may be a lump sum or be proportionate to the exploitation revenues by the assignee during a certain term. A patent assignment may be partial – eg, restricted to a specific application of the patent.

Patent applications may also be assigned, in which case the same rules apply.

As mentioned under 10.1 Requirements or Restrictions for Assignment of Intellectual Property Rights, Belgian law requires a written instrument for the assignment to be valid (this is a validity requirement), and the patent office must be notified and the patent assignment registered to be opposable to third parties. The notification can be easily done via forms made available by the Belgian Federal Public Service (FPS) Economy.

Belgian law requires patent licences (exclusive and non-exclusive) to be made in writing in order to be valid.

To be opposable against third parties, the licence must then be notified and registered with the Belgian Office for Intellectual Property. Such registration is required to enable the exclusive licensee to enforce the licensed patents in the event of infringement or to enable exclusive and non-exclusive licensees to intervene in an infringement proceeding brought by the patent owner to obtain compensation for their own losses (see 3.1 Necessary Parties to an Action for Infringement).

In the event of patent co-ownership, a co-owner may only grant a licence with the agreement of the other co-owner(s) or, in the absence of such agreement, with the authorisation of the court.

A licence may be exclusive or non-exclusive, partial or total, and subject to payments or not (royalties, lump sum, etc).

Patent applications may also be the object of a licence (under Belgian law, the owner of a patent application may require a reasonable compensation for the exploitation of the invention during the term going from the patent application to the patent grant).

As mentioned under 10.3 Requirements or Restrictions to License an Intellectual Property Right, Belgian law requires a written instrument for the licence to be valid (this is a validity requirement), and the patent office must be notified and the patent licence registered to be opposable to third parties. The notification can be easily done via forms made available by the Belgian Federal Public Service (FPS) Economy.