BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
As explained under 2.5 Prerequisites to Filing a Lawsuit , unless all parties disagree, the judge may order the parties to engage in a confidential mediation in the early stages of the procedure. In case an agreement is reached, the mediation agreement will be submitted to the court by the parties, or by either of them, for homologation. The mediation agreement and resulting decision will then be binding on the parties and may not be appealed. 5.4 Other Court Proceedings In Belgium, an infringement case may be stayed pending resolution of an opposition proceeding before the EPO. This is not systematic and usu- ally requires the agreement of all parties to the procedure. Parallel revocation/infringement proceedings in other jurisdictions are unlikely to influence a pending infringement proceeding before the Belgian courts, unless several foreign decisions have been rendered with the same result. Anti-suit injunctions are prohibited under Belgian law. In Belgium, in case a patent or a supplementary protection certificate is found to be infringed, the judge will order the persons liable for infringe- ment to cease the infringement activities (per- manent injunction). In a regular infringement proceeding on the merits, the judge will, on request, also order the compensation of the patentee for all the dam- ages resulting from the infringement. Punitive damages are not allowed in Belgium and the 6. Remedies 6.1 Remedies for the Patentee
intellectual property rights, which are, respec- tively: • the Belgian descriptive-seizure proceeding that enables the collection of evidence of an alleged patent/SPC infringement – descrip- tive measures can be obtained on an ex parte basis (to guarantee a surprise effect), in a matter of days (between two-to-three days to one week), at any time before or after the launch of infringement proceedings; and • an accelerated infringement proceeding on the merits ( action en cessation ) – though not limited exclusively to intellectual property rights proceedings, this procedure enables to obtain injunctive relief on the merits, within an accelerated timeframe (six to ten months) but without the possibility to claim compensa- tion (this will require the filing of a subsequent procedure on the merits). 5.2 Decision-Makers In Belgium, all patent disputes are handled by the Brussels Enterprises Court, which has exclu- sive jurisdiction. The seat of the court will be constituted exclusively by legal judges (no tech- nical judges are involved and disputes are not determined by a jury). As described in 2.3 Courts With Jurisdiction , this centralisation allows for a specialisation of the judges even though they have no technical background. 5.3 Settling the Case At any time during the proceeding, patent dis- putes can be settled by the parties provided they agree on the terms of a settlement. The corre- sponding agreement may then be submitted to the court seized of the dispute in order to record the settlement agreement, thereby ending the dispute. The settlement agreement and resulting judgment will in principle be binding on the par- ties and will not be subject to appeal.
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