BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
3.7 Procedure for Construing the Terms of the Patent’s Claim In Belgium there is no separate procedure for construing the terms of the patent claims. Issues related to the validity of the patent, the construc- tion of the claims and the infringement of a pat- ent are handled within the same proceedings. 3.8 Procedure for Third-Party Opinions In Belgium there is no system through which the court may seek or receive third-party opinions (amicus brief). In Belgium, the revocation/cancellation of a pat- ent can be requested independently in a nullity procedure or through a counterclaim in the con- text of an infringement action. The reasons to seek the nullity and revocation of a patent are: • the subject matter of the invention is not patentable – excluded patentable subject matter includes: (a) discoveries, scientific theories and math- ematical methods; (b) aesthetic creations; (c) plans, principles and methods for car- rying out intellectual activities, games or economic activities, as well as computer programs; and (d) presentations of information; • the invention does not meet the patentability requirements of: (a) novelty; (b) inventive step; or (c) is not susceptible to industrial applica- 4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation
Other exceptions to the rights conferred by a patent may be invoked as defences. These include, among others, the Belgian research exemption or “exemption for experimental use” which has recently been modified to align with the provisions of the Agreement on a Unitary Patent Court. In the pharmaceutical field, the Bolar exemption allows carrying out the nec- essary studies, tests and trials to obtain regu- latory approval in Belgium or the EU, for bio- similar or generic products for human use. In addition, since the recent modification of the Belgian research exemption regime, all acts done for the purpose of evaluating a medicine shall be regarded as acts done for experimental purposes and hence do not constitute acts of infringement (this exception is also known as the Patent disputes often involve technically com- plex issues, while Belgian judges usually do not have technical backgrounds. In Belgian patent disputes, the court may appoint a judicial expert to obtain a (non-binding) opinion on specific technical questions to be decided. Such opin- ion may cover a variety of issues, including the validity and infringement or the assessment of damages. Judicial experts are appointed at the discretion of the judge, either on their own ini- tiative or at the request of a party. The parties will be allowed to take position and challenge or confirm the conclusions of the expert, which is why expert appointments often increase the length (and costs) of patent proceedings. “Bolar+” exemption). 3.6 Role of Experts Any party to a Belgian proceeding may support its position and argumentation with experts’ statements, as part of its obligation to prove the facts it alleges.
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