Contributed By Linklaters
OPRI may only refuse to grant a Belgian patent if certain formal requirements are not fulfilled, in which case the applicant can – in some cases – re-establish his or her rights or regularise the procedural defect(s). As set out above, the grant of a Belgian patent does not depend on the outcome of any substantive patentability searches (see also 1.2 Grant Procedure). Therefore, only revocation/cancellation proceedings and the patent owner’s defence strategy in that respect have any practical relevance for a Belgian patent.
An applicant whose European patent application has been refused may file an appeal against that refusal decision at the Board of Appeal (BoA) of the EPO within two months of the notification of the refusal decision, which shall have suspensive effect. A fee for appeal of EUR1,880 (at the date of this report) will be due. A statement of grounds should be filed within four months of the notification of the decision. If the examining division that refused the European patent application considers the appeal to be admissible and well founded, it should rectify its decision within three months of receiving the statement of grounds.
If the examining division does not rectify its refusal decision and the BoA finds the appeal to be admissible and well-founded, it may decide either to reverse the refusal decision itself or to send the case back to the Examining Division for further prosecution (which shall be bound by the decision of the BoA). Any party adversely affected by the decision of the BoA may file a decision for review of said decision with the Enlarged Board of Appeal for fundamental procedural defects or, if a criminal act may have had an impact on the decision, within two months of the notification of the decision of the BoA (or the date on which said criminal act has been established and no later than five years from the notification of the BoA decision), which shall not have a suspensive effect. A fee for review of EUR2,910 (at the date of this report) should be paid. If the petition is found to be admissible and well founded, the initial decision of the BoA shall be set aside, and proceedings before the BoA shall be reopened.
A PCT applicant may file a request for review with a designated patent office in respect of certain decisions made during the international phase (ie, in the case of refusal to accord an international filing date due to defects in the application; if the application is considered to be withdrawn due to defects in the application or non-payment of the office fees; and if the application is considered to be withdrawn due to lack of receipt of the record copy within the prescribed time limit). Decisions are subject to review by each designated patent office specified by the applicant, which will essentially need to verify whether there was an error or omission in the international phase. The applicant should file the request for review at WIPO and separately with each of the specified designated offices within two months from the notification date of the respective decision (any required office fees should be paid and translations submitted within the same period of time). The designated office(s) will then decide whether the decision made during the international phase was justified, maintaining the effect of the PCT application as a national application if it concludes that an error or omission has occurred. A designated office may decide to pursue the national application even if there were no error or omission (eg, if it grants the applicant's request to excuse a delay to meet a time limit).