BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
Customs Customs seizures are organised by Regulation (EU) No 608/2013 and enable customs authori- ties to block the entry into the territory of the European Union of goods “suspected of infring- ing an IP right”. If there are reasonable indica- tions that there is infringement, the customs authorities may suspend the release or detain such goods at the border. Once blocked, the goods may either be destroyed (absent opposi- tion of the owner) or, if the conditions for destruc- tion are not fulfilled, the patent or SPC owner must initiate judicial proceedings to establish the alleged infringement. The customs authori- ties may intervene either on their own initiative (unlikely in patent/SPC cases) or at the request of the owner of the patent or SPC right. 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property Several remedies are available to third parties to remove the effects of patent rights in Belgium. Nullity Action of a Belgian Patent or of the Belgian Part of an EP Patent Granted patents (a Belgian patent or the Bel- gian part of an EP patent) benefit from a rebut- table validity presumption in Belgium but may be invalidated in whole or in part by the compe- tent court if proven to be invalid. Nullity actions may be brought before the Brussels Enterprise Court by anyone having a legitimate interest, such interest requiring the establishment that the claimant is entitled to expect a material or moral benefit likely to change and improve its legal position. This is usually the case when the parties are active in the same field, or are competitors, or when the claimant is accused of infringing the patent at stake or there is a risk of patent infringement claim. Invalidity grounds are enumerated in the patent law and will need to be evidenced by the claimant seeking to invalidate
the patent. If invalidated, the final and binding nullity decision will eventually be recorded in the Belgian patent registry. For the Belgian part of an EP patent, nullity actions can be filed before the Brussels Enter- prise Court in parallel with an opposition pro- ceeding before the European Patent Office. The Belgian nullity proceeding will not be automati- cally stayed pending the resolution of the oppo- sition (the stay is possible on request but is a matter of circumstances and largely refused). If not opted out, the Belgian part of an EP pat- ent can be invalidated either before the Brussels Enterprise Court or the Unified Patent Court. A unitary patent may be revoked by the Unified Patent Court. Declaration of Non-Infringement Action (DNI) A pre-emptive DNI can be filed in Belgium by anyone having an interest to act – ie, the action must prevent the violation of a right which is seriously threatened. The threat must be estab- lished by the claimant and must be real and not merely theoretical in the sense that it must cause a specific disturbance to the plaintiff. Receiving a cease-and-desist letter and/or having paral- lel infringement proceedings pending in other jurisdictions will usually suffice to establish the interest to act. Compulsory Licence Compulsory licences may be imposed on the patentee by the Belgian Minister of Economic Affairs following a rather complex administrative procedure organised by law. The legal bases for a compulsory licence are enumerated in the law and include the situation where an invention is not being exploited, where the exploitation of an invention is dependent on another patented invention, or in the interests of public health. The
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