BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
• The obligation to pay maintenance fees (annual fees need to be paid to maintain the patent in force). • Under certain conditions, the obligation to grant a compulsory licence (see 2.2 Third- Party Remedies to Remove the Effects of Intellectual Property ). 1.6 Further Protection After Lapse of the Maximum Term As mentioned in 1.4 Term of Each Intellectual Property Right , after their maximum term has lapsed and under certain conditions, the term of certain patents for medicinal and plant pro- tection products may be extended for up to five years via supplementary protection certifi- cates, and for an additional six months for cer- tain medicinal products through the paediatric extension. The protection granted by an SPC extends only to the product covered by a marketing authorisa- tion (it must be the first marketing authorisation of the product as medicine, irrespective of its therapeutic use), within the scope of protection conferred by the basic patent, for any medicinal use of the product authorised before the SPC has expired. The extension of the protection granted by an SPC aims at compensating the exclusivity loss during the long regulatory approval process required to put a medicinal product on the mar- ket, and the paediatric extension aims at fos- tering R&D investments in the development of medicinal products designed for children. 1.7 Third-Party Rights to Participate in Grant Proceedings In the Belgian national route, third parties have no right to intervene in the grant proceedings.
In the European route, during the examination phase and after the publication of the European patent application, third parties have the right to submit observations to the EPO concerning the patentability of the invention to which a European patent application relates. The observations will become part of the file and are communicated to the applicants who will have the opportunity to comment and challenge them. 1.8 Remedies Against Refusal to Grant an Intellectual Property Right In the national route, Belgian patents are auto- matically granted (there is no refusal to grant and hence no remedies foreseen). In the European route, should the EPO refuse to grant a European patent, the applicant may lodge an appeal with the EPO’s Boards of Appeal and the board will act as the department of final instance in the grant procedure. The appeal must be filed in writing within two months of the notification of the contested decision. The Boards of Appeal may eventually decide to dismiss the appeal or, conversely, to correct the decision or remit the case to the relevant depart- ment for further prosecution. 1.9 Consequences of Failure to Pay Annual Fees Failure to pay the annual fees will lead to the expiry of the patent and the rights conferred by the patent will lapse. In Belgium, a grace period of six months is fore- seen as from the last day on which the annuity must be paid, and the payment of an additional tax is required. Failure to pay the annual tax within the grace period will lead to the forfeiture of the patent.
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