Last Updated March 08, 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.

See 2.3 Courts with Jurisdiction for an overview of the competent courts in Belgium and some basic procedural aspects, and 2.5 Prerequisites to Filing a Lawsuit.

Under general civil law rules, a patent-owner may rely on a variety of actions to enforce its rights, including a procedure on the merits (either regular proceedings on the merits or a so-called fast-track procedure that is conducted 'as in summary proceedings', nevertheless still triggering a decision on the merits) and summary proceedings (triggering a preliminary injunction only, from Article 584 of the Judicial Code). Separate from or prior to launching these inter partes proceedings, the patent-owner may also decide to initiate ex parte or unilateral proceedings to obtain a preliminary injunction (Article 584, 4th para of the Judicial Code), or so-called descriptive seizure proceedings (Article 1369 bis/1 and following of the Judicial Code). See also 2.7 Interim Injunctions, below.

Under certain conditions, a patentee may also invoke either criminal law (ie, if an infringement is committed with malicious or fraudulent intent), essentially bringing the matter to the attention of the public prosecutor’s office or the investigating magistrate, or Regulation (EU) 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights (establishing specific procedures relating to the interception and the destruction of counterfeit goods entering the EU).

The basic underlying right to enforce a patent can be found in Article XI.29 of the CEL, which states that infringement proceedings may be brought by the patent-holder against a third party if the latter commits any of the following acts of (direct) infringement on the Belgian territory without the consent of the patent-holder:

  • the manufacturing, offering, bringing to market or use of a product that is the subject-matter of a patent, or the importation or storage of a product for such purposes;
  • the application of a patented process or the offering of a patented process for application on the Belgian territory; or
  • the offering, bringing to market or use of a product directly obtained from a patented process, or the importation or storage of a product for such purposes.

Patent infringement proceedings can also be launched in relation to alleged 'indirect' infringement acts (ie, acts that contribute to direct patent-infringement by a third party), provided that certain conditions are met (as set out in Article XI.29 §2 of the CEL).

Linklaters

13 Rue Brederode
Brussels
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+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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