BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
A restoration procedure is, however, available before the Belgian Office for Intellectual Prop- erty, under certain conditions. If the restoration is granted, the legal consequences of the failure to pay the annual fees are deemed not to have occurred, and the patent as having never ceased to have effect. 1.10 Post-Grant Proceedings Available to Owners of Intellectual Property Rights In Belgium, after the grant of a national patent, it remains possible for the patent owner to amend its patent either by virtue of a court decision handed down in the scope of invalidity proceed- ings and concluding to partial invalidity, or by virtue of an ex parte request for a partial waiver. Before the EPO, a patentee may request ex parte the limitation or revocation of its European pat- ent, to have the granted claims limited or to have the whole European patent revoked for all the designated states. The request may be filed at any time after grant (including after opposition proceedings).
urgency requirement, but no damages may be claimed. Any damage compensation will require the subsequent launch of a regular proceeding on the merits. The president of the Brussels Enterprise Court is competent and the duration to obtain a first instance decision usually ranges between six and ten months. In regular proceedings, the patentee may claim damages and is entitled to full compensation if the infringement is confirmed (the entire damage must be compensated, no more and no less, and punitive damages are not allowed). The dura- tion to obtain a first instance decision before the Brussels Enterprise Court usually ranges between 18 to 24 months. Preliminary Injunction (PI) Proceedings Both inter partes and ex parte PI proceedings are available under Belgian law to obtain interim injunctions pending a decision on the merits. The PI judge may order a variety of measures that can limit, stop, or avoid the damage result- ing from the alleged infringement (including an injunction to stop the commercialisation and/or the advertising of the product, a product recall, or under certain circumstances the seizure of the allegedly infringing goods). Injunctive relief may be sought on an ex parte basis in cases of exceptional urgency and provided that the measures sought are “absolutely necessary” (see 2.7 Interim Injunctions ). Criminal Proceedings Criminal proceedings are available in Belgium under certain conditions. To constitute a criminal offence, the infringement must take place within a commercial context and be committed with malicious or fraudulent intent. Criminal proceed- ings are rather exceptional in patent cases.
2. Initiating a Lawsuit 2.1 Actions Available Against Infringement Civil Proceedings on the Merits
Belgian law provides for regular and accelerated infringement proceedings on the merits, in which a set of remedies are available to the patent holder (see 6. Remedies ). The main differences between both proceedings are the timeframe and the possibility to obtain compensation for the damage resulting from the infringement. Accelerated proceedings enable the initiation of a procedure to obtain injunctive relief on the merits, within a faster timeframe. There is no
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