Contributed By Linklaters
In general, the Judicial Code governs the conduct of civil litigation before the Belgian courts. As a rule, a claim is filed with the court by way of serving a writ of summons on the defendant by a bailiff on behalf of the plaintiff. Alternatively, in such instances as allowed by law, a petition can be filed or a voluntary appearance of the parties can be organised.
When a writ of summons is served in Belgium, the normal period of notice to appear in court is eight days. This means that the period of time between the day on which the writ of summons is served and the so-called introductory hearing at which the defendant must enter a formal appearance may not be shorter than eight days (save for summary proceedings, in which case it is two calendar days). If the writ is filed outside Belgium, the default eight-day period is extended by 15 days if it is served in France, Luxembourg, The Netherlands, Germany or the UK; by 30 days if it is served in other European countries; and by 80 days if it is served in another part of the world.
In cases of urgency, the plaintiff may file a request with the president of the court to have this legal period of notice reduced. In all instances, compliance with the legal period of notice is prescribed under penalty of nullity.
Any writ of summons (or petition) must include details of the plaintiff(s) and the defendant(s), the statement of facts and the legal basis of the claim.
The above is applicable to both infringement claims and proceedings relating to the validity of a patent. A defendant may also introduce his or her own request for relief by filing a counterclaim (typically challenging the validity of the patent and denying infringement). If the parties have initiated separate but related proceedings, the court may decide to join them if they are sufficiently related and if dealing with them separately could lead to irreconcilable decisions.
In general, there is no obligation for a plaintiff to send a cease-and-desist letter to the alleged infringer before launching legal action. In certain circumstances, issuing a similar warning letter would rather defeat the purpose of the application or the urgency of the application. If a party makes an unjustified threat of patent infringement, however, this may potentially trigger the liability of the patent owner under general tort law principles (Article 1382 of the Civil Code).