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Belgium is seeking harmonised patent jurisdiction

Courts in Belgium are seeking harmonisation of European patent jurisdiction, ahead of the arrival of the Unified Patent Court.

The Court of Cassation took the lead in Syral Belgium vs. Roquette Frères, when it assessed the validity of the Belgian component of European patent EP 0 909 138 (C.13.0232.N/1).

The rules on the confiscation of works infringing copyright enable the holder of a patent in Belgium, on unilateral request, to quickly and efficiently gather evidence of an infringement of his patent. Before making a decision, the court investigates the patent’s prima facie validity (Art. 1369bis/1 Judicial Code). In the past, such investigations focused primarily on formal criteria – specifically, whether the patent was lawfully granted and whether the annual fees payable to maintain the patent were regularly being paid in Belgium. When a European patent was granted, the court almost always assumed it was valid.

Recently, however, the Court of Cassation pronounced a judgment that flew in the face of this prevailing practice. The case was that of “a European patent against which revocation proceedings are ongoing in Belgium or another country”. Normally, the Court would merely establish that the decision that the patent is invalid is only provisional because it has been appealed. This judgment, however, states that assessing a patent’s validity entails more than just establishing the provisional nature of the decision. Although the revocation of a European patent in a particular country is effective only in that country, its revocation may be relevant when assessing its validity in another country. The Court must also take account of all the evidence presented by the parties. When it is granted, a European patent is divided into a bundle of national patents; however, all those patents originate from the same patent.

Revoking the ruling
This judgment revokes an earlier ruling by the Antwerp Court of Appeal, which assumed that the Belgian component of a European patent remains valid as long as there was no definitive ruling in the revocation proceedings against the British component of the same patent, or against the corresponding national French patent.

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