Contributed By Linklaters
A plaintiff has a number of options to obtain an interim injunction (preliminary or interlocutory relief), either through proceedings that qualify as ex parte (ie, descriptive seizure or summary proceedings) or inter partes. The most frequently applied for ex parte proceedings are set out below.
In order to request a descriptive seizure merely to obtain evidence of an alleged infringement (ie, a “light” descriptive seizure), a plaintiff needs to demonstrate to the president of the court the prima facie validity of the underlying patent right, and that there are prima facie indications of infringement or imminent infringement of said patent right (Article 1369 bis/1 §3 of the Judicial Code).
There has been much debate recently as to the construction of both prima facie conditions under Belgian law. Following recent case law by the Court of Justice of the European Union, as well as the Belgian Court of Cassation, it is now largely accepted that (the Belgian equivalent of) a European patent should be considered prima facie valid upon it being granted, notwithstanding opposition or invalidity proceedings pending (ie, even if invalidity was already upheld at first instance in a local court or before the opposition division of the European Patent Office). If there is an appeal pending, it is held that the court ruling on a request for descriptive seizure will first have to make an assessment as to the likely chances of the patent-owner prevailing in such an appeal (considering, among other matters, the level at which the patent is challenged, the instance of the court at which the validity is being challenged, the scope of protection of the patent, the content of the file submitted before the court, the legal approach taken locally and abroad, and any other factual and procedural issues raised between the parties).
If the applicant would also like to secure the attachment of any alleged infringing products (ie, apply for a 'full' descriptive seizure), on top of any purely descriptive measures, the conditions are even more stringent. The applicant would need to show:
The court may order the applicant to provide a guarantee, at any time, in order to compensate the defendant for any possible damages in case proceedings on the merits eventually result in a finding of non-infringement. Proceedings on the merits become time-barred if the applicant does not in time (generally within a period of 20 working days or 31 calendar days following the filing of the expert report confirming the findings of the descriptive seizure) initiate such proceedings on the merits.
A plaintiff may also initiate ex parte proceedings under Article 584, paragraph 4 of the Judicial Code, in which case it needs to show urgency, and any of the measures applied for need to satisfy the 'absolute necessity' test. A court may award interlocutory relief if it considers that launching inter partes proceedings would defeat the purpose of any of the measures requested. In this type of proceedings, a plaintiff may essentially request the appointment of an expert, the ordering of such measures necessary to safeguard any of the parties’ interests, and that one or more witnesses are heard.