BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
4.3 Amendments in Revocation/ Cancellation Proceedings
tion; • the patent does not contain a sufficiently clear and complete description of the inven- tion to enable a person skilled in the art to carry out the invention; • the claims contain added subject matter – ie, the claims are not covered by the content of the patent application; and • the patent holder was not entitled to the pat- ent. The claimant seeking to invalidate a patent in a Belgian proceeding must have a legitimate interest in doing so (ie, the claimant is entitled to expect a material or moral benefit likely to change and improve its legal position, which is usually the case when the parties are active in the same field or are competitors, or when the claimant is accused of infringing the patent at stake or there is a risk of patent infringement claim). The Unified Patent Court is competent for actions for revocation of patents and SPCs and counterclaims for revocation of patents and SPCs of European patents which have not been opted out, and for unitary patents. The EPC is the main source of law concerning the validity of a patent before the UPC. 4.2 Partial Revocation/Cancellation Partial revocation or cancellation of a patent is possible in Belgium if the grounds for invalidity affect the patent only in part (the partial revoca- tion of a patent is usually invoked as a defence in the context of infringement actions). In such case, the patent is declared partially invalid from the start and the claims will be amended, as will be the description and drawings, where appli- cable.
In revocation or cancellation proceedings, either in the context of a nullity action or of a coun- terclaim seeking to invalidate the patent, the amendment of the scope of the patent is possi- ble, provided that this does not lead to an exten- sion of the scope of protection. The claims will be amended with the description and drawings, where applicable. 4.4 Revocation/Cancellation and Infringement There is no bifurcation system in Belgium and revocation or cancellation and infringement claims are heard together, in a single proceed- ing before the Brussels Enterprise Court. Before the UPC, the central division is in prin- ciple competent for revocation cases concern- ing unitary patents and European patents which have not been opted-out. However, the system is more complex and, in case an infringement action is pending, the revocation claim will need to be filed before the same local division in charge of the infringement case. The local divi- sion will then have the choice to proceed with both infringement and revocation claims, or go for bifurcation and transfer the revocation action to the competent Central Division, or transfer the whole case to the Central Division (if all the par- ties agree). 5. Trial and Settlement 5.1 Special Procedural Provisions for Intellectual Property Rights As explained under 2.1 Actions Available Against Infringement and 2.10 Mechanisms to Obtain Evidence and Information , in Belgium there are mainly two specific procedures for
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