Bill to Align Belgian Patent Law to the UPC Agreement (NautaDutilh)

Authors: Tanguy de HaanFlorence Verhoestraete and Christel Brion (NautaDutilh)

Date of publication: 19/12/2017

Although Brexit has called into question the future of the unitary patent and the Unified Patent Court, the Belgian legislature is nonetheless laying the necessary groundwork by ushering in various legislative changes.

Indeed, if and when the European unitary patent becomes a reality, it will join two other types of patents capable of producing effects in Belgium, namely the national (Belgian) patent and the classical European patent. Unfortunately, the scope of the rights conferred by these patents may vary, depending on their nature, which is detrimental to the security of patent holders.

For example, certain exemptions from and limitations on patentability provided for by the Unified Patent Court Agreement or UPC Agreement do not exist under Belgian law. Conversely, Belgian law provides for exemptions at terms which may differ from those used by the UPC Agreement.

Thus, a court could be required to apply different standards to assess the potential infringement of a patent producing effects in Belgium, and the merits of an infringement action, depending on whether the patent in question is a Belgian patent, a European patent or a European unified patent.

On 6 November 2017, the parliamentary economic and scientific policy committee adopted a bill intended to bring Belgian patent legislation into conformity with the provisions of the UPC Agreement. The idea is to harmonise, insofar as possible, the provisions of Belgian law relating to the rights conferred by a patent, as well as the exemptions from and limitations on these rights, with the provisions of the UPC Agreement having the same purpose.

Modifications have been made to the provisions on patents in the Code of Economic Law in order in particular to include exemptions that were not expressly mentioned or to align those that already exist under Belgian law with the UPC provisions.

The exemptions from patentability concern:

– Acts for experimental purposes that relate to the object of the patented invention.

The Belgian research exemption (Article XI.34.b Code of Economic Law) currently reads as follows: “The rights conferred by a patent shall not extend to acts done for scientific purposes, with or on the subject matter of the patented invention.” During the parliamentary debate, it was clarified that the word “on” refers to experiments to establish the workability and utility of the patented invention, while the word “with” refers to experiments in which the patented invention itself is used for research as a tool/instrument to develop new inventions. An example of the latter case would be when a patented protein or (poly)peptide is used as a research tool for the purpose of developing a medicinal product.

The new version of this exemption reflects the wording of the UPC Agreement: the rights conferred by a patent do not extend to acts carried out for experimental purposes that relate to the object of the patented invention.

– The use of biological material with a view to breeding or discovering and developing plant varieties.

This exemption is known as the plant breeders’ exemption and allows those who benefit from it to use patented biological material to develop new plant varieties.

Bolar-type exemptions allow the realisation of studies and trials in order to obtain a marketing authorisation for medicines for human or veterinary use without the authorisation of the patent holder and prior to expiry of the protection conferred by the patent.

– The use of information obtained through acts authorised by Directive 2009/24/CE on the legal protection of computer programs, in particular the provisions on decompilation and interoperability.

This exemption relates to the possibility for third parties that have legally acquired software to be able to copy it or convert it into different formats (decompilation) in order to determine how the program reacts when it interacts with other software.

– The wording of certain other exemptions from patentability is amended in order to match that of equivalent provisions in the UPC Agreement and avoid divergent interpretations.

Finally, an amendment is introduced to allow the holder of a European patent whose application to register a unitary patent is rejected to be able to benefit from the protection of its invention in Belgium by means of a European patent without unitary effect.

It should be noted that the harmonisation measures introduced by the draft legislation in no way affect the scope of patentability in Belgium having regard in particular to computer-implemented inventions and inventions associated with plant varieties.

The law should enter into effect on the date of entry into force in Belgium of the UPC Agreement.

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