BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
grant of such compulsory licence is rather theo- retical in Belgium. 2.3 Courts With Jurisdiction In Belgium, all patent disputes are handled by the Brussels Enterprise Court which has exclu- sive jurisdiction. Most judges have no techni- cal background but this centralisation of patent cases allows a certain degree of specialisation of the competent judges. Proceedings will take place in either French or Dutch and, in some instances, strategic decisions will need to be made to bring the case before either the French or the Dutch Brussels Enterprise Court. Appellate proceedings are handled by the Brus- sels Court of Appeal. In third instance, the Belgian Supreme Court ( Hof van Cassatie or Court de Cassation ) is com- petent. This court does not rule on the merits of a case and only assesses the correct application of the law in the decisions rendered on appeal. For the Belgian part of the European patents that have not been opted-out, disputes may be brought either before the national courts (in this case the Brussels Enterprise Court), or the Uni- fied Patent Court (UPC). For unitary patents, the UPC is exclusively competent. The UPC has a local division in Brussels. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes There are no specialised bodies or organisations for the resolution of patent disputes in Belgium. 2.5 Prerequisites to Filing a Lawsuit In Belgium, there is no formal requirement to issue a formal demand or cease and desist let- ter prior to filing a lawsuit. In practice, however, this is done in most cases.
If the judge considers that there is an opportunity to bring the parties closer together, and unless all parties disagree, the judge may order the parties to engage in mediation in the early stages of the proceedings (ie, after having heard the parties at the introductory hearing, or at a postponement hearing set shortly after the introductory hearing, or at a hearing set within one month of the filing of the first written submissions of the defendant). An exclusive licensee may, under certain condi- tions, initiate a patent infringement proceeding but only after the registration of the patent licence with the patent office (the registration formality is required to render the licence opposable to, and hence enforceable against, third parties). 2.6 Legal Representation The parties in patent disputes need to be repre- sented by lawyers who have a monopoly of rep- resentation in Belgium. Patent attorneys have, since 1 April 2024, the right to intervene in pat- ent disputes to provide written or oral explana- tions on factual matters, technical or patent law issues, but without prejudice to the role of the lawyers who remain in charge of the proceeding as dominus litis. 2.7 Interim Injunctions Interim injunctions are available under Belgian law, both inter partes and ex parte, with several measures being available to limit, stop, or avoid the damage resulting from the alleged infringe- ment. The president of the Brussels Enterprise Court is competent for both inter partes and ex parte preliminary injunctions or PI proceedings. The timing of an inter partes PI proceeding in Belgium is usually around two to four months and first-instance PI measures are enforceable despite a pending appeal. The timing to obtain an ex parte decision is much shorter and usually a matter of a few days.
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