BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
3.4 Scope of Protection for an Intellectual Property Right
3.5 Defences Against Infringement In Belgium, the prior use defence is available and organised by law. It requires from the alleged infringer to demonstrate that it used or pos- sessed the invention object of the patent, in Belgium, in good faith, prior to the filing or pri- ority date. The prior possession of the invention must lead to a full and practical knowledge of the invention that enables its use before the fil- ing/priority date. The prior use must be certain and not ambiguous and must have taken place in Belgium. This defence is intuitu personae and only the legal entity that can evidence that it used or possessed the invention in good faith in Belgium can benefit from the exception. Belgian case law also recognises the Gillette- defence (also known as “Formstein defence”), which is a hybrid defence between invalidity and non-infringement that consists in claiming that the alleged infringer merely implements the state-of-the-art, or a non-inventive variant there- of. If confirmed, this defence will result in a lack of infringement or, alternatively, in the invalidity of the patents invoked since they would merely reflect the prior art. The compulsory licence defence is also availa- ble, including where the exploitation of an inven- tion is dependent on another patented invention, but this is seldom used and rather theoretical (see 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property ). Patent exhaustion is also an available defence under Belgian law and the rights conferred by a patent do not extend to acts concerning a prod- uct, which are performed on the Belgian territory after that patented product was placed on the market in a European member state by the pat- ent owner or with their express consent.
The scope of protection conferred by a patent is determined by the claims while the descrip- tion and drawings are used for their interpre- tation. What is clear from reading the claims does not need to be interpreted (it is only in case of ambiguity that the claims will need to be interpreted). Patents should in principle be interpreted restrictively, with the willingness to understand the claims, and an interpretation that makes technical sense will be favoured over a nonsensical one. The doctrine of equivalence is applied in Bel- gium, which means that the scope of protection is determined by the wording of the claims and by potential equivalents (provided certain require- ments are fulfilled). The majority of Belgian case law applies the “function-way-result” approach. To determine whether there is infringement by equivalents, the court will verify if: • the (essential) feature in question has sub - stantially the same function; • whether it performs the function in substan- tially the same way; and • whether the feature leads to substantially the same result. Belgian case law generally admits a defence based on the prosecution history estoppel and a patent holder cannot invoke a scope of pro- tection in the context of infringement allegations that would contradict limiting statements made during the patent grant proceedings to distin- guish its invention from prior art. An alleged infringer can therefore challenge an alleged infringement by equivalents based on the EPO prosecution file and possible limitations made during prosecution.
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