Contributed By Linklaters
In Belgium, the inventor (or any other physical or legal person to whom patent rights have been transferred) may obtain a patent for an invention consisting of a product or process that is new, inventive and industrially applicable, provided that such protection is not excluded by law (as further set out below).
Article XI.4 of the Code of Economic Law (CEL) contains certain limitations on the inventions that are eligible for patent protection, particularly excluding the following from patent protection:
Article XI.5 CEL excludes animal breeds, plant varieties and biological methods for the creation of plants or animals from patent protection (without prejudice to the possibility of obtaining a patent for an invention relating to animals or plants if this invention is not limited to a specific breed or variety, or an invention relating to a microbiological or other technical process or product resulting from such process). Pursuant to the same article, certain inventions whose exploitation would go against public order or morality are also not eligible for patent protection (eg, human cloning). In addition, the human body and the discovery of a part of the body (including a sequence of a gene) are not eligible for patent protection, except parts of the body that have been isolated or otherwise obtained through a technical process (including a sequence of a gene). Finally, processes of surgical or medical treatment of human or animal bodies and diagnosis on said bodies are not eligible for patent protection either (except for products used in those processes).
Depending on the preferred territorial scope of protection, it may be appropriate to file a Belgian patent application, a European patent application or an international (PCT) application. In the latter two cases, the applicant will benefit from a (partially) streamlined application procedure in order to obtain a bundle of national patent rights in the relevant participating countries selected by the applicant (covering Belgium if designated). The EU intends to create a unitary patent with effect in up to 26 EU Member States (which may still change in the future). At the time of this report, Belgium has already made significant progress in implementing the unitary patent and harmonising the rules regarding the scope of patent rights, and exceptions and limitations to such patent rights. Most of these rules will come into force once the Agreement on a Unified Patent Court enters into force vis-à-vis Belgium.
Alternatively, a company can also opt to keep inventions secret in case the relevant product or process is not easily capable of being reverse-engineered. The disadvantage of this is that such trade secrets are not protected by a separate intellectual property right. If the invention is acquired legitimately, used by a third party or disclosed to such third party without compromising any contractual or other rights, the trade secret can be freely used, since there is no exclusive proprietary right prohibiting the same. It is therefore necessary to protect the inventions or other confidential information by putting appropriate confidentiality safeguards in place (limited disclosure, confidentiality agreements, operational and technical security measures, etc).
At the level of the European Union, Directive 2016/943 protects trade secrets, in the sense of information that is secret, that has commercial value because it is secret and that has been subject to reasonable steps to keep it secret against its unlawful acquisition, use and disclosure. At the time of this report, the Act of 30 July 2018 modified several provisions of Belgian law in order to implement this Directive. Even though trade secrets cannot be considered to be a new intellectual property right, the legislator aligned various procedural measures and remedies with existing intellectual property legislation.