BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
3.2 Direct and Indirect Infringement Under Belgian law there is a difference between direct and indirect infringement. Direct Infringement If committed on the Belgian territory without the patentee’s consent, a patent owner can prevent a third party from: • manufacturing, offering, placing on the market or using any product covered by the patent, or importing or stocking such product for that purpose; • using a process which is the subject matter of the patent or, if the third party knows or should have known that the use of the pro- cess is prohibited without the consent of the patent owner, offering its use on the Belgian territory; and • offering, placing on the market, using or importing or holding for these purposes a product obtained directly by a process which is covered by the patent. Direct infringement requires that all the features of the asserted patent claim are implemented in the infringing product or process (see 3.4 Scope of Protection for an Intellectual Property Right for the infringement by equivalence). Indirect Infringement The patent owner can also act against indirect infringement and prevent any third party from supplying, on Belgian territory, without its con- sent, means of implementing the patented inven- tion that relate to an essential element of the invention, provided that the third party knows or should have known that those means are suitable and intended for such implementation. This does not apply when such means are com- monly available on the market, unless the third
party induces the person to whom they supply to commit an act of infringement. 3.3 Process Patents Products directly obtained by a patented pro- cess benefit from the same protection as pat- ented products. Belgian law explicitly provides that “offering, placing on the market or using, or importing or possessing for the aforementioned purposes, the product obtained directly by the process covered by the patent”, constitutes an act of infringement. Importing a product that is directly obtained by a patented process, if per- formed overseas, therefore constitutes an act of infringement and opens a right to act in Belgium. Whether the process to manufacture the product was legitimately performed overseas is irrelevant in this regard. Belgian law provides for a reversed burden of proof mechanism for process patents when the product obtained via the patented process is new and the alleged infringer is putting an identical product on the market. In such case, the identical product will be presumed to be obtained through the patented process and will be deemed infringing. To benefit from this mech- anism, the patent holder must prove: • that the product is new – the “novel” charac- ter of the product is not defined by law and Belgian case law is divided on this notion, some case law considering it to be equivalent to the “novelty” patentability requirement, while other decisions considering it as a dis- tinct notion; and • that the products are identical – the identity requirement is not defined by law but applied quite strictly by the courts, and must be examined in relation to the products them- selves and not in relation to the patented process itself.
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