BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
Obtaining a preliminary injunction requires establishing that: • there is urgency; • the patent right invoked is prima facie valid; • there are indications of (imminent) patent infringement; and • in some cases that the balance of interests is in favour of the right-holder. The judge will verify in concreto whether these requirements are met (arguments will be disre- garded if they go beyond the prima facie exami- nation of the PI proceedings). European Patents (“EP patents”) enjoy a strong presumption of prima facie validity in Belgium and case law is rather pro-patentee, since a granted EP patent will – in principle – be deemed valid and enforceable as long as it has not been revoked by a final decision of the EPO or a Bel- gian court. Even weak patents therefore carry the risk to be successfully enforced through a PI. The PI judge must, however, take all the facts and circumstances invoked by the parties into account in its prima facie validity assessment (for example, whether foreign decisions have been rendered on the validity of the national part of the EP patent at stake). The urgency requirement – ie, that irreparable harm will be sustained if immediate measures are not taken or that the dispute on the merits cannot be resolved in time – is central in interim procedures and the concrete circumstances of the case are crucial to this assessment. Belgian case law tends to consider that there is urgency when a risk of patent infringement is established. The urgency requirement is more stringent to obtain ex parte interim injunctions. Exceptional urgency must be evidenced and the patent holder
will need to prove that the measures sought are “absolutely necessary”; ie, that there is extreme urgency, or that the very nature of the measure requested requires the use of a unilateral proce- dure to guarantee its effectiveness. This extreme urgency requirement is assessed very strictly by the court and must remain exceptional. Interim injunctions are limited in time and the right-holder will need to start proceedings on the merits within a certain timeframe. 2.8 Protection for Potential Opponents In Belgium, protective letters may be filed but are not organised by law and the competent judge has no obligation to take them into account. Protective letters are regularly filed when a party fears being the target of a descriptive seizure with effective seizure measures. The main objec- tive of such letter is to be heard by the compe- tent judge and provoke an inter partes debate before the requested measures are granted, to enable the targeted party to challenge such grant and to avoid the surprise effect if granted. The competent judge may submit the grant of interim measures to the posting of a bond, but this is not automatic. 2.9 Special Limitation Provisions Patent infringement proceedings are time- barred after five years from the date on which the infringement was committed. For damages, the compensation claim will be time-barred after five years from the day following the moment the patentee or SPC owner has had knowledge of the infringement (with a maximum of 20 years following the date on which the infringement was committed).
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