Last Updated April 16, 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.

An action for infringement should be launched against the person or entity that committed any of the acts of direct or indirect infringement described in 2.1 Actions Available Against Infringement, above. In some cases, a third-party intermediary whose services have been used to infringe patent rights, the possessor or user of the infringing products on a commercial scale or the supplier on a commercial scale of the services used to commit patent infringement may also be summoned to appear in court.

It follows from Article XI.60, §2 of the CEL that both the owner and the usufructuary of a patent may separately launch an infringement claim in court. Also, the holder of a compulsory licence and (if not contractually excluded) the exclusive licensee has the required standing to take court action against an infringer if the owner or usufructuary fails to take court action after having been notified by the licensee of the infringement. A non-exclusive licensee may only intervene in proceedings launched by the patent-owner or usufructuary to obtain compensation for damages incurred by it, and does not have a self-standing right to launch court proceedings against an infringer.

See 2.1 Actions Available Against Infringement for the concepts of direct and indirect infringement, and 6.1 Remedies for the Patentee for available remedies.

In Belgium, an action for infringement of a patent may equally be launched against a person committing direct or indirect infringement (see Article XI.60, §1 of the CEL). Indirect infringement is considered to be an autonomous infringement ground and is not dependent on the finding of a direct infringement.

The scope of protection of a patent is essentially determined by its claims and supported by the description and the drawings, if any. The principle of strict (narrow) construction applies, since patent rights are an exception to the freedom of trade. There is, however, one exception to this principle of strict construction: the equivalence doctrine, according to which the scope of protection of the patent claims should also cover any technical equivalents that are apparent for a person skilled in the art.

See 2.2 Third-party Remedies to Remove Effects of Intellectual Property Right for the various defences that an (alleged) infringer may invoke. 

The main defences available are related to invoking the invalidity of the patent and claiming non-infringement. The alleged infringer may also invoke expiry of the patent, lack of entitlement to the relevant patent rights, the various exceptions discussed at 2.2 Third-party Remedies (private and non-commercial use, Bolar, exhaustion, prior personal use or possession), statute of limitations or abuse of rights. Alternatively, the alleged infringer may also invoke the so-called 'Gillette' defence (which may be of particular use in cease-and-desist proceedings), whereby the alleged infringer asserts that he or she merely applied the prior art existing at the application or priority date of the invoked patent, implying that the invention covered by the patent is not new or inventive (without, however, invoking the patent’s invalidity) or that the alleged act of infringement falls outside the scope of the patent.

See 5.2 Decision Makers, with respect to the involvement of experts in court proceedings.

Experts may be entrusted with a fact-finding mission or requested to draw up a technical report. An expert may be appointed by the court (at the request of one of the parties or in some cases of its own motion), or (one of) the parties may request the (private) assistance of an expert at their own initiative.

There is no separate procedure for the construction of the claims of a Belgian patent. Discussions with respect to the construction of a patent usually arise in the framework of infringement and validity proceedings. Alternatively, parties may appoint a third-party decider to resolve any interpretation issues between them. In any case, such decision(s) only have an effect inter partes and do not bind any future courts, other instances or any third parties.

Linklaters

13 Rue Brederode
Brussels
1000

+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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