BELGIUM Law and Practice Contributed by: Valentin de le Court, Camille De Munter and Emilie Van Heck, Osborne Clarke LLP
6.2 Rights of Prevailing Defendants In patent disputes, the prevailing defendant will in principle be entitled to: • recover the costs of the procedure, includ- ing a statutory lump sum to cover its lawyer’s fees (based on the value of the dispute, see 8.3 Responsibility for Paying the Costs of Litigation ); • the technical adviser’s and expert’s fees (including patent attorney fees); and • monetary compensation for any damages suffered if the defendant can prove that the patent/SPC owner committed a fault by initiating the infringement proceeding (there is no objective liability and the threshold to establish the fault is high, which makes such monetary compensation difficult). 6.3 Types of Remedies See 6.1 Remedies for the Patentee . There are some variations for trade secrets due to the dif- ferent nature of this right, including in the correc- tive measures that may be ordered by the judge. As an example, the judge may order “depriving the infringing goods of their infringing quality”, and can prohibit the obtention, use or disclo- sure of trade secrets and order the prohibition to produce, offer, place on the market, use, import, export or stock for those purposes, of the infringing goods. 6.4 Injunctions Pending Appeal In Belgium, the rule is that first-instance deci- sions are provisionally enforceable pending appeal, at the risk of the enforcing party. Unless otherwise provided in the court decision, injunc- tions will therefore be enforceable even if an appeal is lodged. The opposite rule applies in nullity proceed- ings. If the patent is revoked (partially or totally)
rule is that the patent/SPC holder must be fully compensated for any damage sustained; ie, the patent/SPC holder must be restored to the same state as if the infringement had not occurred, nothing more, nothing less. In the event of bad faith, the judge may order the transfer of all or part of the profits made from the infringement to the patent/SPC holder. In addition, the judge may order a set of meas- ures which are likely to contribute to the cessa- tion of the infringement (both in a regular and an accelerated infringement proceeding on the merits) and/or which are likely to contribute to the compensation of the damage (only in a regu- lar infringement proceeding on the merits). At the request of the party entitled to bring the infringe- ment action, such measures may include: • the recall of the infringing goods from the trade channels, the final withdrawal from trade channels or the destruction of the infringing goods, as well as, where appropri- ate, of the materials and tools used principally for their manufacturing; • the order to provide the patentee/SPC holder with all the information it has on the origin and distribution networks of the infringing goods or services and to communicate all data relating thereto (subject to a proportion- ality assessment); and • the publication or display of the decision, or of a summary thereof, in newspapers or in any other manner including on the infringer’s website, at the infringer’s expense. Remedies can be enforced after the decision is served on the losing party and are usually grant- ed with penalty payments as sanctions against non-compliant defendants.
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