Last Updated June 20, 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, as well as 4 Revocation/Cancellation.

A defendant in infringement proceedings will generally want to challenge the validity of the patent or argue that it is not infringing the patent right(s) invoked. The latter can be done by asserting that there is no reproduction of the essential features of the invention (as included in the claims, supported by the description and the drawings, if any) or that the challenged acts cannot otherwise be qualified as infringing under Article XI.29 of the CEL (see 2.1 Actions Available Against Infringement).

As none of the patent-owner’s rights are absolute, a (possible) defendant may also rely on any of the limitations to the patentee’s rights as set out in Article XI.34 and following of the CEL. This includes the inability of the patent-holder to enforce its rights against a party that has applied the patented invention within the confines of what is referred to as 'private and non-commercial use'. Belgian law also includes a research or so-called Bolar exemption, allowing third parties to perform certain acts on or with the subject matter of a patented invention for purely scientific purposes. The CEL also refers to specific acts that can no longer be prohibited because of the patent rights of the patentee having been exhausted (following its authorising a patented product to be put on the market in a specific jurisdiction). Finally, a defendant may also be in a position to rely on the 'prior personal use or possession' exception if applicable to the Belgian territory (Article XI.36 of the CEL).

In general, the aforementioned defence strategies are open to a defendant in response to a plaintiff enforcing its rights, or upon such defendant proactively applying to (the president of) the court for a declaration that any given act does not constitute infringement. 

As in any other civil procedures, either party initiating litigation before a court of law will need to establish that it has proper standing to be able to do so (Article 17 of the Judicial Code). 

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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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