BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
2.10 Mechanisms to Obtain Evidence and Information In a pending proceeding, a party may ask the judge to order the production of certain well- identified documents that contain the proof of a relevant fact useful for resolving the dispute. The production will only be ordered if there are “serious, precise and concordant presumptions of possession by the party of a document con- taining evidence of a relevant fact”. The Belgian descriptive-seizure proceedings enable the collection of evidence of an alleged patent/SPC infringement. Descriptive measures are obtained on unilateral request, either before or after infringement proceedings have begun, and are commonly granted in Belgium (most infringement cases are preceded by a saisie (sei - zure)). The timing to obtain a decision ranges between two to three days and one week. The requirements are straightforward and the patent or SPC holder will need to demonstrate (i) that the patent invoked is prima facie valid, and (ii) that there are indications (not evidence, only a mere indication) that the patent has been infringed or that there is a threat of patent infringement. Indications of infringement are a matter of circumstances, that can be established by all legal means. If granted, an expert will be appointed by the court and entrusted with the mission to arrive by surprise at the premises of the infringer (or at any place in Belgium where evidence of the alleged infringement could be found) to collect informa- tion on the alleged infringement and its scope. The expert will subsequently file a confidential report describing its findings and the patentee will have to launch an infringement action on the merits, within a certain timeframe (failing to do so will cancel the measures granted and the
right-holder will no longer be allowed to use the report in court). 2.11 Initial Pleading Standards The initial pleading standards in Belgium to initi- ate a lawsuit require a clear and plausible state- ment of the facts that support the claim, with the corresponding evidence. In the course of the proceeding, the parties will file several rounds of written submissions, with the possibility to sup- plement the pleadings with additional arguments and new evidence. The initial claim can even be extended or modified during the proceed- ing under the condition that any new claim is based on a fact or an act contained in the initial writ of summons. In this regard, recent case law confirmed that the mere mentioning of a pat- ent in the writ of summons as being part of the patent portfolio of the claimant, without stating in the writ of summons that such patent was infringed, did not meet this requirement and did not enable the patent holder to formulate a new patent infringement claim based on such patent in subsequent submissions. 2.12 Representative or Collective Action The Belgian legal system theoretically permits class actions in case of an alleged violation by an undertaking of the laws listed in Article XVII.37 of the CEL, which includes Book XI CEL that covers “Intellectual Property Rights and Trade Secrets”. Such class actions must be brought on behalf of a group of consumers or of small and medium-sized enterprises that have been harmed by the alleged violation. The claim must be filed by a group representative meeting cer- tain conditions set by the CEL and the recourse to a class action must appear as more efficient than an ordinary law proceeding. The possibil- ity to bring class actions seems rather limited in patent cases.
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