Patents of Invention
– Title I “Patents” and Title II “Supplementary Protection Certificates” of Book XI “Intellectual Property” of the Code of Economic Law, entered into force on January 1, 2015.
– Royal Decrees of December 2 and 18, 1986.
Membership in International Conventions
– Paris Convention for the Protection of Industrial Property, Stockholm Act.
– Convention Establishing the World Intellectual Property Organization (WIPO), since January 31, 1975.
– The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Apostille), since February 9, 1976.
– Strasbourg Agreement Concerning the International Patent Classification, since July 4, 1976.
– European Patent Convention (EPC), since October 7, 1977.
– Patent Cooperation Treaty (PCT), since December 14, 1981.
– Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, since December 15, 1983.
– WTO’s TRIPS Agreement, since January 1, 1995.
– London Agreement on the application of Article 65 EPC, since September 1, 2019.
Applicant (who may file): any inventor or his assignee.
Foreigners and nationals not living in the European Union: must appoint an official representative.
Protection for foreigners: the same as for nationals.
Naming of inventor(s): the inventor has the right to be named; he can also oppose such naming.
Notion of the invention: any invention that is new, involves an inventive step and is susceptible of industrial application even if the invention involves a biological product.
Novelty: an invention shall be considered to be new if it does not form part of the state of the art (absolute novelty).
Inventive step: an invention shall be considered involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art.
Exceptions to protection: discoveries, scientific theories, mathematical methods; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers as such; presentations of information; plant varieties protected by the special law of May 20, 1975; animal varieties; essentially biological processes for production of plants or animals, and plants or animals obtained exclusively by means of such processes, including the parts of these plants or animals which form propagation material (these non-patentable processes do not include processes for which a technical feasibility is not limited to a determined plant or animal, and microbiological processes, other technical processes or a product obtained by such a process. The biological exceptions are those cited in the guidelines 98/44/EC.); inventions contrary to public policy or morality; the human body in its different stadia of development; methods for treatment of the human or animal body by surgery or therapy; diagnostic methods on human or animal body.
Kinds of protection: only patents of invention having a term of twenty years from the filing date.
Secret patents: secrecy may be requested or imposed in the interests of national security.
Priorities: multiple and/or partial priorities according to the Paris Convention may be claimed; also possibility of claiming the priority of a prior Belgian application.
Validation of European patents: foreigners and nationals (natural or legal persons) not living nor having their actual place of business in the European Union must appoint an authorized professional representative.
National phase of the European Convention: the London Agreement entered into force in Belgium on September 1, 2019 and the translation requirements provided for in Art. 65(1) EPC are dispensed with according to Art. 1(1) of the Agreement. From January 1, 2017 it was, however, already no longer required in Belgium to file a translation for European patents which were granted, maintained in amended form or limited after that date.
Provisional protection: a European patent application does not confer in Belgium the protection such as provided by Article 67 (1). For limited protection according to Article 67 (2) and (3), it is necessary, if the application was filed in English, to file a translation of the claims into French or Dutch (or German, if the application for the European patent was filed after December 13, 2007). Renewal fees: the minimum time period for paying renewal fees due at validation is two months and may be paid up to six months from the due date with a surcharge.
PCT application: this Convention is in force in Belgium since December 14, 1981 (both Chapters I and II). When Belgium is designated in a PCT patent application, the latter is considered as an application for a European patent (designating Belgium) according to the provisions of the European Patent Convention. No national title is available through a PCT application. Time limit for entering the European regional phase under Chapters I and II: 31 months.
Filing requirements for an application (to be sent to resident agent):
1. A request for the grant of the patent;
2. A description of the invention;
3. One or more claims;
4. The drawings;
5. An abstract;
6. The geographical origin of the biological material used for the invention;
7. The designation of the inventors, or a request from the inventor that he/she does not want to be cited;
8. In case of priorities: filing date, number and State of the original applications, a certified copy of the involved applications, an attestation from the authority that has received the priority application indicating its filing date, and an assignment deed, if necessary.
Minimum requirements for obtaining a filing date: an indication that the elements form a patent application, an indication making possible to establish the identity of the applicant or a way to contact him/her, a description which may be in any language.
Request for search: to be made at the latest thirteen months after filing date or the priority date, if any.
Amendments after filing: clerical errors and the like may be corrected up to the granting date.
Interference: not possible.
Process claims: are provided for.
Disputes about ownership: the aggrieved person may claim the transfer of the patent to his benefit; to be made within two years following the grant of the patent.
Dispute about novelty: settled by the courts.
Examination: only formal examination; preparation of a search report and written opinion on patentability by the European Patent Office must be requested within thirteen months from the filing date or the priority date; possibility of amending the claims, the description, the abstract, and to file comments relating to written opinion on patentability; no effective substantive examination by the Patent Office.
Division: possible by the applicant on his own up to grant; division can also be required by the Patent Office after search report if there is lack of unity.
Provisional registration: not possible.
Publication: the application is entered in the Patent Register, and is laid open to public inspection, as soon as possible after eighteen months after the filing date. For an earlier entry in the Register, a request in writing has to be filed. An official abridgment is printed some time after grant.
Delivery of document: the patent is normally granted as soon as possible after the expiration of a term of eighteen months following the filing date or the earlier claimed priority. A Ministerial Decree confirming the grant is delivered.
Beginning of protection: exclusive right shall take effect as of the day on which the patent is made available to the public; if the patent application has been available to the public or if a copy has been sent to a third party, before grant at the request of the applicant, reasonable compensation may be demanded from the third party having exploited the invention between this date of availability and the date of grant.
Duration: twenty years as of the filing date.
Extension: possible up to five years for medicinal and plant protection products depending from the issuance of the first administrative authorization of marketing the product. Can be extended by filing a paediatric extension based on EEC 469/2009.
Annual fees – latest term for payment – restoration: annual fees are to be paid as of the 3rd year after the filing date; payment is due on the last day of the month of the anniversary of the filing date; possible payment with fine within six additional months; possible restoration until the earliest of the following two time limits: two months after the end of the impediment that has caused a loss of right or one year after the due date.
Opposition: not possible.
Marking of patented goods: not required.
Text of marking: any text, which is not likely to be deceptive.
Amendment of granted patents: not possible.
Disclaimer: possible renunciation to a whole patent or to one or more claims or parts of claims.
Assignment: must be registered in order to be able to have an effect in respect of the Patent Office or third parties.
License for exploitation: same as for an assignment.
Working: if a patent has not been exploited without a valid reason within four years from the filing date or within three years from the granting date, whichever is latest, a non-exclusive compulsory license may be requested. The publication of an advertisement is not considered a valid exploitation.
Modification of Protection after Registration
Right of prior use: possible if having taken place in Belgium.
Opposition to granted patents: not possible.
Compulsory licenses: can be issued (1) in case of non-exploitation of a patent without valid reason within four years from the filing date or within three years from the granting date, whichever is latest; (2) when an invention covered by a patent owned by an applicant for a license cannot be exploited without infringing the rights deriving from a patent granted on an earlier date; (3) when a breeder cannot obtain or exploit a plant breeders' right without infringing an earlier patent; (4) to the holder of a plant breeders' right if the holder of a patent for a biotechnological invention has been given a compulsory license for the non-exclusive exploitation of the plant variety protected by this plant breeders' right; (5) in case of a health emergency, and this for a medicine, a medical device, a diagnostic product or device, a derived or combinable therapeutic product, or a method or product required for producing those; and (6) for the manufacture of pharmaceutical products for export to countries with public health problems.
Expropriation: in principle, not possible. The law of January 10, 1955, prohibits the divulgation and use of inventions, which are contrary to the interests of the defense or security of the State.
Revocation: only by a court decision.
Grounds: lack of patentability, description insufficiently clear and complete, addition of new matter, proprietor nor entitled.
Validation of invalidated patents: not possible.
Infringement: any commercial or industrial use by an unauthorized party within the Kingdom of Belgium constitutes an infringement. Infringement proceedings shall be barred after five years from the date on which the infringement was committed.
Penalties: the court shall order any infringer to cease the infringement, to pay the petitioner compensation for the damage caused and to publish the judgment. In case of bad faith, the court shall order the confiscation to the benefit of the petitioner of the articles manufactured in infringement of the patent and of the instruments and means specially intended for their manufacture. When appropriate, the court shall award an amount equal to the price of the articles already sold.
Supplementary Protection Certificates (SPCS)
Supplementary Protection Certificates for pharmaceutical and plant protection products may be applied for pursuant to European Community Council Regulation (EEC) No. 469/2009, concerning the creation of a Supplementary Protection Certificate for medicinal products, Regulation (EC) No. 1610/96 of the European Parliament and of the Council of July 23, 1996, concerning the creation of a Supplementary Protection Certificate for plant protection products, and Regulations (EC) Nos. 1901/2006 and 1902/2006 of, respectively, December 12, 2006 and December 20, 2006, on medicinal products for paediatric use.
Filing requirements: a basic patent covering the product to be protected, which is in force in Belgium; a copy of the first authorization to place the product on the Belgian Market. This authorization must be valid; a copy of the first authorization to place the product on the European Economic Area (EEA) if the Belgian one is not the first, as well as a copy of the publication of said first authorization in EEA in an Official Bulletin; a power of attorney, if a patent attorney has been appointed; the payment of a filing fee.
Duration: the certificate shall take effect at the end of the basic patent, for a period equal to the period elapsed between the filing date of the basic patent and the granting date of the first authorization in EEA, reduced by a period of five years. The duration may not exceed five years, although a further six-month paediatric extension can be obtained, provided that marketing approval based on an agreed paediatric research plan is filed.
Annuities: Belgium requires the payment of annual fees for maintaining the certificate in force.