BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
Supplementary Protection Certificate To obtain a supplementary protection certificate for a medicinal product (including the “paediatric extension”), an application form must be filed with the Belgian Office for Intellectual Property in one of the national languages. This application form must contain a set of information, includ- ing: • the request for the grant of an SPC; • a copy of the marketing authorisation (MA) issued in Belgium; and • additional information in the event that the Belgian MA was granted after another MA in the European Union. Once the Belgian Office for Intellectual Property confirms that all the required formalities are ful- filled, the certificate is issued and will enter into force on the day of expiry of the basic patent. Trade Secrets Trade secrets are not subject to a grant proce- dure and there is no formal application process. Protection mainly requires the implementation of a set of reasonable measures to keep the infor- mation secret. No exclusive rights are granted and the protection offered will enable the trade secrets holder to act against unlawful acts (ie, the unlawful acquisition, use and disclosure of the trade secrets), provided reasonable secrecy protection measures are adopted and can be evidenced. 1.3 Timeline for Grant Procedure Applicants are not legally obliged to be repre- sented to initiate grant proceedings before the Belgian Office for Intellectual Property, even though this is almost systematically the case in practice. Belgian patents are automatically granted within approximately 18 months from their application (see 1.2 Grant Procedure ).
be obtained through the filing of a patent application with the EPO. The EPO will first conduct a formal examination (verification of the payment of the fees, etc) and then issue a prior art search report along with a written opinion on the patentability of the invention. Unlike the Belgian national patent, a thorough examination of the patentability requirements will be carried out by the EPO. This proce- dure is contradictory and the applicant has the right to respond to any objection by the office, including by making amendments to the patent application or by providing argu- ments to address the issues raised. If the patentability is eventually confirmed, the EPO will publish its intention to grant. After the payment of the corresponding fees and after the necessary translations are provided, the European patent will be granted and pub- lished in the European Patent Bulletin. The European patent designating Belgium will then confer the same rights as a national pat- ent. • For a unitary patent, the pre-grant phase is the same as for a European Patent and it is granted by the EPO under the rules of the European Patent Convention. Once the European patent is granted, the patent owner has to request unitary effect to obtain the “European patent with unitary effect” that provides uniform protection in all the partici- pating member states (currently 18, including Belgium). • The international route – Belgium is a member of the Patent Cooperation Treaty (PCT) and an international patent application can be filed to simultaneously seek protection for an invention in several countries. For Belgium, an international patent application needs to be filed at the EPO and this international route will eventually lead to the grant of a European patent valid for Belgium.
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