Patent law

Obtaining and enforcing patents in Belgium

Obtaining a patent in Belgium

There are two ways to obtain patent protection in Belgium:

– By applying for a Belgian patent, or

– By obtaining a European patent and carrying out the required steps to make the European patent effective in Belgium.

A patent can also be obtained in Belgium via an international application (PCT application). This is possible through a European patent (see point 2. European route), when the international application is continued as a European regional application.

1. Applying for a Belgian patent

Belgian patents are granted by the Belgian Intellectual Property Office (IPObel), a public service of the federal government.

The procedure for obtaining a Belgian patent is a registration procedure, with only a formal examination, but no substantive examination. However, the availability of a search report (drawn up by the European Patent Office) is a necessary condition for granting a Belgian patent. A Belgian patent is granted in one of three languages: Dutch, French, or German.

Belgian patent legislation is contained in Book XI of the Code of Economic Law (CDE) and the Royal Decrees (RD):

  • Book XI CDE (French version): Link
  • RD of 2 December 1986 on requesting, granting and maintaining invention patents, last amended by RD of 21 April 2024 (French version): Link
  • RD of 18 December 1986 on fees and additional fees relating to patents and supplementary protection certificates, amended by RD of 24 September 2007 (French version): Link

Website IPObel: Lien

The IPObel has compiled several useful brochures to help you navigate the world of intellectual property. An overview of these brochures can be found here: Link

2. European route to obtain patent protection in Belgium

By applying for a European patent, it is also possible to obtain patent protection in Belgium. European patents are granted by the European Patent Office (EPO), located in Munich (Germany) and Rijswijk (The Netherlands).

A European patent is granted only after a substantive examination. The European patent is granted in one of the three official languages of the EPO: English, French, or German.

Once the European patent is granted, the necessary steps must be taken to make it effective in Belgium. There are two ways:

  1. a classical validation procedure, with the sole obligation to pay the annual fees for maintaining the European patent in Belgium (we refer to this case as the Belgian part of a European patent);
  1. by requesting unitary effect for the European patent, in which the European patent with unitary effect also has effect in Belgium.

European patent law is contained in the European Patent Convention (EPC), its Implementing Regulations and the Rules relating to Fees:

Enforcing patents in Belgium

Depending on the type of patent, different courts have jurisdiction to hear disputes regarding patent infringement in Belgium.

For a Belgian patent, an infringement action must be brought before the Brussels Enterprise Court, which has exclusive jurisdiction for the entire Belgian territory (Art. 574, 15° and Art. 633quinquies, §1 Judicial Code).

For the Belgian part of a European patent, there is still a choice between the Brussels Enterprise Court and the Unified Patent Court (UPC) until 2030 (Art. 83(1) UPC-A). However, this choice does not apply if an opt-out request has been filed for the patent in question, which gives exclusive jurisdiction to the Brussels Enterprise Court (Art. 83(3) UPC-A).

Actions for infringement of a European patent with unitary effect (a “Unitary Patent”) must be brought before the Unified Patent Court. The Unified Patent Court is an international court with central divisions in Paris (France), Munich (Germany), and Milan (Italy), as well as a local division in Brussels.

In Belgium, it is possible to establish alleged patent infringement through a (descriptive) seizure for infringement. This is a unilateral, non-contestable procedure in which an expert appointed by the Court describes all objects, elements, documents, or processes that demonstrate the alleged infringement of a patent, as well as its origin, intended use, and extent. The (descriptive) seizure for infringement can be executed anywhere. The President of the Brussels Enterprise Court rules on the request for a (descriptive) seizure for infringement. In exceptional cases, seizure measures can also be ordered (Articles 1369bis/1-1369bis/10 of the Judicial Code).

 

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