Articles

Towards a true assessment of the prima facie validity of (European) patents

Towards a true assessment of the prima facie validity of (European) patents

Towards a true assessment of the prima facie validity of (European) patents

02.10.2014 BE law

In an apparent move away from its own recent case-law, the Belgian Court of Cassation (“Cour de Cassation” / “Hof van Cassatie”) has confirmed the necessity of a true assessment of the prima facie validity of (European) patents within the framework of Belgian preliminary injunction and descriptive seizure (“saisie-contrefaçon” / “beslag inzake namaak”) procedures.

The decision of 12 September 2014 may herald a new era in patent litigation in Belgium, which is for most long overdue.

In its decision, the Court stated that lower courts may not simply set aside:

  1. a foreign decision nullifying the corresponding national part of a European patent, and 
  2. a decision on the merits nullifying a patent, when such decision has not yet entered into force (because of an appeal procedure with suspensive effect which has been initiated against such decision),

as irrelevant because (a) not issued in relation to the Belgian part of the same European patent, and (b) not yet entered into force, respectively.

The foregoing opens the door to a true assessment of the prima facie validity of (European) patents. Indeed, with its decision the Court seems to distance itself from its earlier – and relatively recent – decisions of 5 January 2012 and 24 June 2013, which have been interpreted by some as creating a quasi-insurmountable presumption of validity of (European) patents in Belgium, even in cases as in (1) and (2) above.

Team

Related news

20.03.2020 EU law
Philippe Campolini authored the Belgian chapter of EPO's country-by-country overview on patent enforcement in Europe

Articles - In the interests of promoting harmonisation and knowledge exchange in patent enforcement and litigation practices, the European Patent Academy, together with authors from all over Europe, has compiled a book to offer a comprehensive reference and guide to the measures available to protect patent rights across the 38 EPC contracting states as well as the relevant national procedures to enforce them.

Read more

24.10.2019 BE law
Virtual Currency Regulation Law Review - Belgian chapter

Articles - The second edition of the Virtual Currency Regulation Law Review is intended to provide a practical, business-focused analysis of recent legal and regulatory changes and developments, and of their effects, and to look forward at expected trends in the area of virtual currencies on a country-by-country basis.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring