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.

Article XI.57 §1 of the CEL provides the following legal grounds upon which a court may revoke or cancel a granted patent:

  • if the (subject matter of the) patent does not meet the essential criteria for patentability (ie, cumulatively requiring novelty, inventive step and capability of industrial application, as per Articles XI.3, XI.6, XI.7 and XI.8 of the CEL) or is not eligible for patent protection (eg, if the claimed invention can be considered contrary to public policy or morality, as set out in Articles XI.4 and XI.5 of the CEL);
  • if the patent does not allow the underlying invention to be disclosed in a sufficiently clear and complete way for it to be properly applied by a person skilled in the art;
  • if the subject matter of the patent is not covered by the content of the application as filed (or by the content of the original application as filed, in case of divisional patent application(s)); or
  • if the patent-owner was not entitled to the patent (if the owner is not the inventor, or is not entitled to the invention through law or contract), as per Article XI.9 of the CEL.

A patent can be revoked or cancelled in whole or in part, as per Article XI.57 §2 of the CEL, which states that: “Should the grounds for revocation only partially affect the patent, the patent will be modified by a corresponding amendment of the claims, and if necessary, the description and the drawings, and revoked in part. The amendment will need to be recorded at the registry.”

The CEL also provides that the patent cannot be amended by means of a revocation or cancellation if such would result in the subject matter of the patent reaching beyond the content of the patent application as filed (Article XI.57 §3, first part of the CEL). Finally, the patent cannot be amended by means of a revocation or cancellation if doing so would extend the coverage of protection compared to the latest enforceable version of the patent (Article XI.57 §3, second part of the CEL).

See 4.2 Partial Revocation/Cancellation.

As per Article XI.56 of the CEL, a patentee can personally withdraw the patent (in whole or in part) at any time (ie, during proceedings and following a claim for (partial) revocation or cancellation).

See 2 Initiating a Lawsuit, above on the rules governing court litigation in Belgium and the initiation of a procedure. 

Issues of infringement and validity are almost always litigated in the same proceedings (ie, there is no system of bifurcation in Belgium). If both types of proceedings would nevertheless have been filed separately, they are likely to be joined in order to avoid decisions that would be irreconcilable.

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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