International Patent Litigation in Belgium

The owner or usufructuary of a patent may bring proceedings for patent infringement 1 . Except if otherwise provided, if the patent is owned by two more persons, any of the owners may initiate infringement proceedings but only with the consent of the other owner(s) or, or failing that, with the authorization of the court. 2  

Exclusive licensees, except as otherwise provided, and beneficiaries of compulsory licenses may also bring proceedings for patent infringement if, after having sent a notice letter, the owner or usufructuary of the patent doesn't bring such proceedings 3 .  

All the licensees are entitled to join the proceedings brought by the owner or usufructuary of the patent in order to obtain compensation for their own loss. 4 

It is possible to join any number of parties as defendants in the same proceedings. 

Yes, it is possible to join suppliers or other third parties to the proceedings, either as defendants or claimants, provided that they have an interest to the outcome of the proceedings. 

In addition, the Belgian Code of Economic Law specifically states that an injunction may be issued against intermediaries whose services are used by a third party to infringe a patent 5 and an order to provide information regarding an infringement may also be issued against a person who has been found to be in possession of infringing goods on a commercial scale, who has been found to be using infringing services on a commercial scale or who has been found to be providing, on a commercial scale, services used in infringing activities 6 . 

A patent infringement action must be brought within five years from the day on which the infringement was committed. 7  

Infringement proceedings may only be brought from the date on which the patent is made available to the public and only in respect of acts of infringement committed from that date. 8  

Separate proceedings may be initiated to invoke an additional patent. If the separate claims are considered to be related (i.e. so closely connected that it would be better to consider them at the same time in order to avoid irreconcilable decisions), the judge may decide to join the separate proceedings. 

In the course of pending proceedings, a claim brought before the court may be extended or amended in the submissions provided that they are based on a fact or act referred to in the summons, even if their legal qualification is different, and provided that the defendant still has the opportunity to respond 9 . 

All patent claims are brought before the Brussels Enterprise Court, even when the parties are not companies and regardless of the amount of the claim (without prejudice to the jurisdiction of the Unified Patent Court and of the arbitration court) 10 .  

Infringement and validity are often decided in the same proceedings: invalidity of a patent is often raised as a counterclaim in infringement proceedings. 

Yes, Belgium takes part in the UPC. Belgium ratified the UPC in 2014. The UPC has a local division in Brussels. 

Yes, a claim for a declaration of non-infringement is available under Belgian law and may be brought by any person having a legitimate interest 11 . The claimant must demonstrate that its right is subject to a serious threat. The court will not allow a claim that is essentially seeking a mere consultation. 

The writ of summons contains a summary of the facts, the claimant's arguments and a request for relief.  

At the introductory hearing, the court usually records a procedural timetable for the parties to exchange written submissions and sets a date for the pleadings.  

It usually takes between eight months to one year or more for a claim to reach a hearing, depending on the workload of the court, the procedural timetable and the number of submissions exchanged. 

The duration of trials depends on the complexity of the case, the workload of the court, the number of parties, the number of written submissions, etc.  

A hearing usually takes a couple of hours, or more if needed. For complex cases, two or more hearings may take place.  

In principle, the judge must render his decision within one month after the hearing. However, in practice, the decision is rendered within one to three months. 

Judges have no technical expertise. However, the purpose of centralising intellectual property right infringement proceedings with the Brussels Enterprise Court was to achieve a certain level of specialisation of the judges. 

Belgian courts will sometimes stay proceedings pending the outcome of a related EPO opposition but caselaw seems to lean more towards refusal of suspension. 

Yes, a party can file an action for nullification of a patent without being sued for patent infringement provided that it has an interest to obtain the invalidity of the patent.  

Yes, a party can file such actions. 

A compulsory license may be requested to the Minister or the King (a) if an invention is not exploited, (b) in case of an invention whose exploitation depends on another invention or (c) in the event of a public health problem 12 . 

A party can invoke the FRAND defence in patent infringement proceedings. Belgian case law on FRAND licenses is very poor. 

In order to investigate and advise the court on technical issues, an expert may be appointed by the court, at the request of one of the parties or at the court’s own initiative. 13 The expert will submit a written report containing his observations. 14 The judge may hear the expert at the trial. 15   

A party may also bring its own expert witness.  

Judges are not bound by expert reports. 

There is no disclosure/discovery procedure in Belgium. Parties are free to produce the evidence supporting their arguments. 

However where there is serious and specific evidence that a party or a third party is in possession of a document containing evidence of a relevant fact, the judge may order that the document or a certified copy thereof be filed as part of the proceedings 16 . 

The president of the Enterprise Court may, on ex parte application by the patent owner grant a descriptive seizure order (saisie decription), whereby an expert is appointed in order to describe the origin, destination and extent of the alleged patent infringement 17 . The judge may also order the seizure of infringing products 18 . The description and seizure will take place at the premises of the alleged infringer and the expert will submit a written report to the Court.  

Subsequently, the patent owner has a limited time to initiate proceedings on the merits. If the patent owner fails to do so, he won’t be able to use the content of the report in any future litigation 19 . 

A first instance decision can be appealed by either party before the relevant court of appeal. The appeal has to be filed within 1 month from the service of the first instance decision. 20  

A court of appeal’s decision can subsequently be appealed before the supreme court, within 3 months from the service of the court of appeal’s decision. 21  

All the aspects of the first instance judgment may be subject to appeal before the Brussels court of appeal. 22 

Only the legal aspects of the court of appeal's decision may be subject to appeal before the supreme court. 

It may take several years before a decision is issued by the court of appeal and around one year for the supreme court. 

No. The first instance decision is not suspended while an appeal is pending. The convicted party must comply with the first instance decision, notwithstanding the appeal. 

Costs of patent litigation proceedings will depend on various factors (such as lawyer’s fees, the complexity of the case, the number of submissions to be filed, the involvement of technical experts, the need to translate documents, etc.). In simple patent litigation proceedings, estimated costs are around €50,000. 

Costs of patent litigation proceedings for an appeal will depend on various factors (such as the complexity of the case, the nature/ number of arguments in the appeal, lawyer's fees etc.). In simple patent litigation proceedings, estimated costs for an appeal are around €50,000. 

The court may order the losing party to pay a "procedural indemnity" intended to cover the winning party's costs of legal assistance. The amount of this indemnity is determined by the law and depends on the amount of damages claimed and on some other criteria (such as the complexity of the case). The winning party cannot claim its actual legal costs beyond this amount. 23   

The options for alternative dispute resolution available in Belgium are negotiation, conciliation, mediation and arbitration.  

Negotiation is a discussion between the parties. This type of proceedings can be carried out with or without a lawyer, and may therefore be free of charge. 

Conciliation is a voluntary and totally free procedure. All exchanges between the parties are confidential, and the conciliating judge may, after hearing the parties and their lawyers, suggest solutions that the parties can agree upon. If an agreement is reached, the terms of the agreement are recorded and become binding upon the parties 24 . 

Mediation is a confidential, structured process of voluntary consultation between parties in conflict, conducted with the assistance of an independent, neutral and impartial third party who facilitates communication and attempts to lead the parties to work out a solution themselves 25 . Mediation involves costs: lawyers' and mediator's fees. 

Disputes may also be brought in front of arbitral courts. 26 Arbitration proceedings are faster and more specialised but also more expensive than proceedings before the judicial courts. 

These options are not commonly used in Belgium. 

The court may ask the parties to consider these options at any stage of the proceedings. 

The remedies available in patent infringement cases are:  

• an injunction 27 ; 
• damages 28 ;  
• publication or display of the judgement 29 ; 
• a recall, removal or destruction of the infringing products as well as, in appropriate cases, of the materials and tools used in their creation or manufacture, at the expense of the infringer 30 ; and/or 
• the disclosure of information regarding the origin and distribution networks of the infringing products or services 31 . 

Damages must repair the entire prejudice actually suffered by the patent owner due to the infringement. 32 

The right owner must prove the extent of damage suffered, based on the lost profits, i.e. the profits that the patent owner would have made if the infringement had not occurred, and on actual losses caused by the infringement. 

Lost profits are calculated by reference to the royalty rate either applied by the patent owner if sales of the patented product are licensed to third parties, or, if sales are made by the patent owner himself, by reference to a reasonable royalty rate that would have been agreed between a willing licensor and a willing licensee. 

The court may also grant a lump sum when the damages cannot be determined in any other way 33 . 

The judge may, by way of damages, order (i) the delivery up of the infringing products and of the materials and tools used in the creation or manufacture of those products, and in the event of bad faith, (ii) the assignment of all or part of the profit made as a result of the infringement 34 and/or the confiscation of the infringing products to the benefit of the plaintiff and of the materials and tools used in the creation or manufacture of such products 35 . 

An enquiry into damages is not provided for by Belgian law.  

However, through the ex parte descriptive seizure proceedings (procedure de saisie-description), experts may be authorized by the Court to visit the infringing party and search for evidence regarding the origin and extent of the infringement 36 . 

The claimant may also request, as part of the proceedings on the merits, that the defendant be ordered to produce specific information on the infringement allowing to determine the level of damages payable 37 . 

Finally, the court may, as part of the proceedings on the merits, appoint an expert to provide an advice on the level of the damages. 

If the infringement is committed in bad faith, the judge may, by way of damages, order the delivery up of the infringing goods and of the materials and tools used in the creation or manufacture of those goods, and which are still in the possession of the defendant. If the value of these goods, materials and tools exceeds the extent of the actual damage, the judge shall determine the compensation to be paid by the plaintiff. The judge may also, by way of damages, order the assignment of all or part of the profit made as a result of the infringement 38 .  

Finally, the judge may order the confiscation of the infringing goods for the benefit of the plaintiff and of the materials and tools used in the creation or manufacture of such goods and which are still in the possession of the defendant. If the goods, materials and tools are no longer in the possession of the defendant, the judge may award a sum equal to the price received for the transferred goods, materials and tools. The confiscation thus ordered absorbs the damages, up to the value of the confiscation 39 . 

At Handelsgericht Wien, proceedings for preliminary injunctions (except for those where a party is requesting the seizure of evidence) are usually held inter partes, with both parties participating in the proceedings. In such circumstances, preliminary injunctions usually take a few weeks. Expert reports will not usually be required. Evidence is normally presented by private expert opinions and / or the participation of patent attorneys.

The court may order a recall, removal or destruction of the infringing products as well as, in appropriate cases, of the materials and tools used in their creation or manufacture, at the expense of the infringer 40 . 

There is no limitation in time provided by the law. In assessing a request for such measure, account will be taken of the proportionality between the seriousness of the infringement and the corrective measure ordered, as well as of the interests of third parties. 41  

Yes. The patent owner can obtain a preliminary injunction (provisional measures) by initiating summary proceedings before the president of the Brussels Enterprise Court. 42 These measures cease to have effect once a decision on the merits is rendered. The claimant must prove the urgency, i.e. the need to obtain a quick decision in order to avoid serious harm that is difficult to repair and a prima facie valid right. 

Moreover, provisional measures may be requested at any stage of proceedings on the merits in order to provisionally settle the situation of the parties, when waiting for a final decision on would be too long. 43 The party requesting a provisional measure has to prove that this measure is needed and justified based on the parties’ situation and the parties’ interests would otherwise be affected given the length of the proceedings. 

It is possible to obtain a without notice preliminary injunction (provisional measures) in case of absolute necessity. 44 Such measures are not frequently granted. These injunctions need to be followed by proceedings on the merits in order to have them confirmed. 

Preliminary injunctions can be obtained within one to six months. 

It is also possible to obtain an injunction quite quickly through cease and desist proceedings (accelerated proceedings on the merits). According to these proceedings, the president of the Brussels Enterprise Court may grant a final injunction, without the need to proof the urgency. 45 

It is possible to appeal against a preliminary injunction. 

Appeal against a preliminary injunction does not suspend the effect of the injunction, unless the judge decides otherwise 46 . 

The claimant enforces the injunction at its own risk and can be liable for the harm suffered by the defendant if the injunction is invalidated at a later stage. 

The judge may make it a condition of the injunction that the claimant provides a guarantee to cover possible indemnification for the harm suffered by the defendant if the infringement proceedings are subsequently considered to be unfounded and the injunction withdrawn. 47  

Further proceedings on the merits are not necessarily required in order for the court to grant a final injunction. Indeed, injunctions obtained through summary proceedings can be final if no proceedings on the merits are subsequently introduced.

The European Court of Justice rejected the rationale for cross-border injunction in patent 

proceedings on the merits in its decisions in GAT/LuK and Roche/Primus of 13 July 2006.  

However, this blockage does not apply to provisional measures. This was clarified by the CJEU in the Solvay/Honeywell case, thereby confirming the practice of the Belgian courts issuing cross-border injunctions by way of interlocutory decision. 

Belgian courts refuse to issue ASI, whether they are aimed at prohibiting infringement action on Belgian territory or abroad.