How to avoid language barriers when filing patent applications in Belgium

In order to validly file a patent application in Belgium, three essential elements must be sent to the Belgian Office for Intellectual Property (OPRI), as listed in Article XI.17(1) of the Code of Economic Law (CEL):

• a description that generally corresponds to the body (ie, text and drawings) of the patent application;
• a set of indications to establish the applicant's identity and how to contact them; and
• an explicit or implicit request for the grant of a patent.

The European Patent Convention (EPC) provides similar provisions (Article 80 and rule 40(1) of the EPC).

Laws on the Use of Languages in Administrative Matters of 18 July 1966

As the OPRI is a central federal public service, under Articles 41 and 52(1) of the Laws, individuals may file the three elements referred to above in the official language of their choice (ie, Dutch, French or German). Private companies (or legal persons) established in Belgium in a given language region must file these elements in the language or languages recognised as "official" in that region. The so-called "facilities regime" (which allows the use of more than one language in some municipalities in particular situations) does not apply when filing a patent application.

Derogation for body of application

Article XI.17(3) of the CEL reiterates the need to comply with these provisions but also provides for a derogation: for the purposes of assigning a filing date, the body of the application may be filed in any language (as is the case for a European application, according to Article 14(2) of the EPC). However, this derogation has two important explicit limitations:

• it applies only for the purpose of assigning a filing date and, therefore, it is necessary to regularise the patent application later on; and
• it applies only to the body of the application and not to the other elements of the filing (eg, the request).

Minor consequences

If the body of the application is filed in an inadmissible language, the applicant has three months from the filing to provide a translation into an admissible language (Article 8 ter of the Royal Decree of 2 December 1986 on the application, grant and maintenance of patents for invention). If the applicant fails to do so, the OPRI invites the applicant to do so and to pay a regularisation fee within a new period of three months in accordance with Article XI. 21(1) of the CEL and Article 26(1) of the Royal Decree. If the applicant fails to do so, the application is then deemed to be withdrawn. If the translation is filed within the time limit, the filing date of the application, if any, is not affected.

Major consequences

If the indications on the applicant or the request are in an inadmissible language, no filing date is attributed to the application until these elements are regularised (Article XI.17(5) of the CEL). This can have dramatic consequences, especially when the application is a priority application and the applicant discloses the invention shortly after filing with the thought that a filing date has been granted. The only consolation is that, where possible, the OPRI notifies the applicant as soon as possible, in accordance with Article 8 bis(1) of the Royal Decree and Article XI.17(4) of the CEL, so that it is possible to react quickly and limit the postponement of the application date in time.