Last Updated April 16, 2019

Law and Practice

Contributed By Linklaters

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Linklaters is a leading international law firm, and has advised on significant deals in over 100 countries. In addition to serving clients from its 30 offices and via its alliance with Allens and Webber Wentzel, Linklaters’ lawyers have expertise in key jurisdictions across emerging Europe, the Middle East, Asia and Africa. In Belgium, Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in both Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to IP/TMT and tax, means that the firm provides market-leading advice across the full spectrum of legal specialities.

The grant procedure varies depending on the type of patent applied for (ie, Belgian, European or international (PCT)).

A Belgian patent application can be filed at the Belgian Office for Intellectual Property (OPRI) in Dutch, French or German, in accordance with the applicable legislation on the use of languages in administrative affairs. The filing date (or, if a right of priority has been claimed, priority date) of the patent application will determine the relevant prior art, since Belgium has a first-to-file system. The European Patent Office (EPO) will perform a novelty search and issue a written search report and opinion with respect to the fulfilment of the patentability requirements (essentially, inventive step and novelty), the outcome of which shall have no binding effect on OPRI's decision to grant the patent. This allows the applicant to withdraw the patent application if the invention is not eligible for patent protection, or modify it (with the proviso that the scope of the patent application can never be extended) or, alternatively, comment on why it does not agree with the opinion.

The grant of a Belgian patent is based on the verification of formal requirements only, and all substantive warranties are therefore excluded. The validity of a Belgian patent is eventually assessed, in case court proceedings are launched. A patent application will normally be published 18 months after the filing or priority date, unless the applicant requested prior publication or withdrew its application.

A European patent entails a common application process resulting in a bundle of national patent rights in one or more member countries of the European Patent Convention (EPC). The application can be filed at the EPO or at a national patent office, if allowed by applicable national law. A translation in an official language of the EPO (English, German or French) will need to be provided within two months of filing the application. The EPO will first examine whether all relevant formalities are met, and will then perform a novelty search and draw up a search report. It will also issue a non-binding written opinion on the invention’s patentability, allowing the applicant to amend or withdraw the application.

The patent application will be published 18 months after the filing or priority date, unless the applicant requested prior publication. The EPO will thereafter submit the patent application to substantive examination to determine whether the invention is eligible for patent protection and meets the requirements of the EPC. Depending on the outcome of such examination, the EPO decides whether or not to grant the patent. Finally, the European patent will need to be validated in the designated countries. The European patent in which Belgium has been designated grants the holder the same rights as it would enjoy under a Belgian patent as from the date of publication of the mention of the grant in the European Patent Bulletin or the decision to maintain the patent in an amended or limited form.

The international (PCT) patent application is rather similar to the European patent, but encompasses only a procedural integration of the application process in (at the time of this report) 152 contracting states without any substantive harmonisation. The PCT application results in a bundle of national patent rights, which are each governed by applicable national legislation. The application may be filed at a national or regional patent office, or at World Intellectual Property Organization (WIPO). The receiving office first verifies whether the PCT formality requirements have been fulfilled. If so, the International Searching Authority (ISA) will draw up an international search report with respect to the relevant prior art and issue a non-binding written opinion on the invention’s patentability, allowing the applicant to amend or withdraw the application.

The patent application will be published as soon as possible once 18 months have passed since the filing or priority date. The applicant may request a supplementary international search to be executed if it believes certain prior art documents have not yet been identified. The applicant may also request an international preliminary examination (ie, an additional non-binding opinion reviewing whether an invention meets the patentability requirements). The national phase will usually start 30 months after the filing or priority date, unless an earlier entry into the national phase has been requested, during which there will be an assessment as to whether a national (or regional) patent may be granted in all designated countries (or regions), individually from each other.

Linklaters

13 Rue Brederode
Brussels
1000

+32 2 501 90 86

+32 2 501 91 14

pieter.van_den_broecke@linklaters.com www.linklaters.com
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Authors



Linklaters is a leading international law firm, and has advised on significant deals in over 100 countries. In addition to serving clients from its 30 offices and via its alliance with Allens and Webber Wentzel, Linklaters’ lawyers have expertise in key jurisdictions across emerging Europe, the Middle East, Asia and Africa. In Belgium, Linklaters is recognised as a market-leading law firm, with a presence in the Belgian market dating from 1969 and with offices in both Brussels and Antwerp. Its wide offering of specialised practices, ranging from corporate and banking to IP/TMT and tax, means that the firm provides market-leading advice across the full spectrum of legal specialities.

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