BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
3. Infringement 3.1 Necessary Parties to an Action for Infringement The owner or usufructuary of a patent is entitled to bring an infringement action. In the event of co-ownership, and unless oth- erwise provided in an agreement, a co-owner may only launch an infringement action with the agreement of the other co-owner(s) or, in the absence of such agreement, with the authorisa- tion of the court. In the event of patent assignment, the assignee may initiate infringement proceedings, but only after the registration of the assignment in the patent register (some case law considers that such registration is only relevant with regard to the property rights that third parties may hold in the patent as an element of patrimony, but should not prevent the right of the patent holder to initiate infringement proceedings). In the event of an exclusive licence, the licence must also be registered in the patent register to make it enforceable against third parties, and the exclusive licensee will have the right to launch an infringement action if, after formal notice to the patentee, the latter has failed to launch such action. The same rule applies in case of compul- sory licences. After registration of the licence with the patent register, any licensee (exclusive and non-exclu- sive) is entitled to intervene in an infringement proceeding brought by the owner or usufructu- ary of the patent to obtain compensation for their own losses.
2.13 Restrictions on Assertion of an Intellectual Property Right The owner of a patent may be restricted in asserting its rights against others based on the abuse of rights principle. As a general principle of Belgian law, a patent owner may not abuse its rights and cannot exercise them to gain an advantage which is totally out of proportion with the prejudice this causes to others. Under cer- tain circumstances, in case the patent owner has several ways to exercise its right, it cannot do so in a way that is most harmful to others without this choice being justified by a sufficient interest on their part. The exercise of an IP right, by a dominant under- taking, does not in itself constitute an abuse of dominant position (see CJEU 30 January 2020, Case C-307/18, EU:C:2020:52, Generics) but under specific circumstances an IP holder may be limited to assert its rights if the asser- tion qualifies as an abuse of dominant position (under competition law). In case of Standard Essential Patents, the refusal to grant a FRAND licence can, in certain circumstances, constitute an abuse of dominant position. FRAND case law is not developed in Belgium. In one case, recently overturned on appeal, the judge considered in the first instance that the refusal to grant a licence constituted an abuse of economic dependence and imposed the grant of a non-exclusive licence in Belgium under certain conditions. The principle of res judicata also applies and a claim which has been judged on the merits can- not be re-litigated.
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