Measures to enforce Belgian patent rights in court

National Belgian patents and European patents in force in Belgium are exclusive IP rights that allow the patentee to forbid others from exploiting its invention in Belgium. Unfortunately, competitors do sometimes violate patentees' exclusive patent rights, which can result in damages (eg, financial loss). Luckily, there are various legal procedures under Belgian law that enable patentees to enforce their exclusivity in court.

This article focuses on civil proceedings available to owners of a granted patent, which is the most common way to enforce a patent right.

Getting ready for a civil infringement procedure

In order to obtain an infringement conviction in civil infringement proceedings, the infringement must be proved. However, obtaining the required evidence might prove difficult at times, particularly when the infringement relates to a method invention. Fortunately, a special procedure called a "seizure" is available to patent owners that need to obtain evidence to support their infringement claims. There are two variants of seizures: a descriptive seizure and a conservation seizure.

Descriptive seizure

The purpose of a descriptive seizure is to gather evidence about the existence, origin, destination and extent of the infringement. For this purpose, a judge may, at the unilateral request of the patent owner (the alleged infringer shall not be informed of the court's decision to allow the seizure), authorise an independent judicial expert to enter the premises of the alleged infringer, gather evidence regarding the infringement and draw up a report, which can be used in court.

The expert may – on the basis of the relevant provisions of the Belgian Procedural Code – be authorised to "make copies, make photographs, make audiovisual recordings as well as to have samples handed over" with respect to the allegedly infringing goods and/or the materials and/or machines used in their production, as well as the documents pertaining thereto.

Conservation seizure

A conservation seizure has a conservatory purpose – namely, to ensure that the alleged infringer does not destroy, get rid of or substantially alter the allegedly infringing goods or the auxiliary materials, machines and documents, or tamper with the evidence in any other way. This variant of the seizure is more disruptive for the alleged infringer than the descriptive seizure, and is thus authorised by the judge only in particular circumstances where not allowing the conservation would create greater damage to the patent holder.

In order to ensure the proper cooperation of the alleged infringer, counterfeit measures may be coupled with penalty payments.

Civil infringement procedure as summary procedure

Infringement can be dealt with in a provisional procedure called a "summary proceeding". The decision in such a summary proceeding is provisional in the sense that it is not binding for the judge in the infringement proceedings on the merits. The purpose of this procedure is to resolve the presumed infringement provisionally and rapidly until there is a ruling on the merits. A case can only be dealt with by means of a summary proceeding if it is so urgent that, if no action were taken immediately, the patentee would suffer damages of a certain extent or suffer serious inconvenience.

The judge can impose various types of measures to avert the damages and inconvenience for the patentee, as long as they are provisional. Given that the judge can only impose provisional measures, they cannot impose measures that cause a definitive and irreparable disadvantage for one of the parties.

Civil infringement procedure on the merits

If a case cannot be dealt with by means of a summary proceeding because there is no urgency or because such a proceeding is not desirable, infringement proceedings on the merits may be brought in the form of an injunction "as in summary proceedings" or a regular infringement procedure.

Injunction as in summary proceedings

In the first form, the procedure is "as in summary proceedings", which means that it will proceed more quickly than a regular infringement procedure – in particular, by setting a shorter summons period, a shorter response time, and an earlier pleading date.

Notwithstanding the procedural similarity with the summary proceedings, the court assesses the injunction as in summary proceedings on the merits – that is, not provisionally. The purpose of an injunction as in summary proceedings is to obtain the definitive cessation of the infringement as soon as possible. In order to achieve this objective, the available measures are limited to those measures that prevent infringement. Therefore, damages cannot be requested. On the contrary, the regular infringement procedure does allow reimbursement for damages to be requested, but has the disadvantage of taking longer than an injunction as in summary proceedings.

A primary measure that can be requested is an injunction aimed at stopping the infringement. Such an injunction measure may include, for example:

• a ban on commercialisation;
• the suspension of market authorisation proceedings; or
• an injunction to cease advertising.

In order to enforce the cessation, these measures are usually linked to penalty payments. Such cessation may also be imposed against intermediaries, such as transporters or distributors, where those intermediaries provide services that facilitate the patent infringement. Information may also be requested from the alleged infringer, forcing them to provide all information they have on the origin and distribution of the infringing goods. This exposes other possible infringing channels or places where infringing goods are located, and thus further infringement can be nipped in the bud.

Regular infringement procedure

An injunction can also be requested in a regular infringement procedure. Such an injunction, however, only covers the future, since it is impossible to demand retrospective cessation. In order to penalise and correct past infringement, further measures are available, as set out below.

In general, the patentee whose patent is being infringed is entitled to compensation for any damages it suffers as a result of the infringement. The aim is therefore to match the damages and the compensation, so that the patentee is placed in the position in which it would have found itself if the infringement had not occurred. In accordance with established law, such compensation consists of two parts:

• the lack of profits; and
• the losses suffered.

The lack of profits corresponds to the profit margin or licence fee that the patentee would have had on the infringing goods that the alleged infringer produced and/or sold. The losses suffered may comprise different elements, such as reputational damage. If the damage cannot be determined in any other way, the judge may reasonably and fairly set the compensation at a fixed amount. The judge may also order that the infringing goods – as well as, where applicable, the materials and machines used primarily in the creation of those goods, and which are still in the possession of the alleged infringer – be handed over to the patentee. Such a request is made "by way of damage compensation" and therefore requires the budgeting of the damages suffered on the one hand and the value of the goods referred to above on the other. Where the alleged infringer has acted in bad faith – for example, if the alleged infringer has willingly withheld crucial information – the patentee may request that, instead of the damages being calculated based on its own lost profits, the profits of the alleged infringer on the infringing goods be handed over instead. This profit transfer is also made by way of compensation.

In order to correct past infringement, the judge may order the infringer, at their expense, to recall, destroy or otherwise remove from the market the infringing goods, as well as, where applicable, the materials and machines used primarily to manufacture those goods. In doing so, the judge will take into account the proportionality between the seriousness of the infringement and the requested correction, as well as the interests of third parties.

Past infringement can also be corrected by demanding a publication measure. For example, the judge may order the infringer to have the court's decision posted (eg, on the infringer's website) for a set period, and that the decision be published in newspapers or in any other way, all at the expense of the infringer.