Belgium – Guide to Preliminary Injunctions in Patent Litigation

Introduction

Since the Unified Patent Court (UPC) entered into force on 1 June 2023, it has jurisdiction over certain disputes concerning European patents. During the transitional period, however, national courts continue to share jurisdiction with the UPC for European patents without unitary effect, unless they have been opted out. Belgian courts also retain jurisdiction over Belgian national patents.

In Belgium, the Brussels Enterprise Court has exclusive jurisdiction over patent and supplementary protection certificate (SPC) disputes. Belgian law offers several procedures allowing patentees to enforce their rights quickly and efficiently.

Patentees may choose between standard infringement proceedings on the merits, which typically takes 12 to 18 months, and cease-and-desist proceedings, which is a specific statutory injunctive procedure leading to a decision on the merits but conducted like summary proceedings under accelerated timelines, and typically takes a few weeks to a few months. However, it is not possible to claim damages in the context of the latter.

Under Belgian law, “preliminary injunctions” generally refer to provisional measures ordered by a court, often in summary proceedings before the president of the Enterprise Court, to stop or regulate alleged patent infringements pending the preparation and decision on the merits. In Belgian legal terms, these are referred to as “provisional measures”.

Provisional measures

Various options are available for obtaining provisional measures.

The first option is summary proceedings conducted before the president of the Enterprise Court. In this procedure, provisional measures may be granted if it is established that the claim is urgent, and that the patent relied upon is prima facie valid and likely to be infringed. These proceedings are conducted on an adversarial basis. Only in cases of absolute necessity can these proceedings be conducted on the basis of a unilateral petition, i.e. when the case must be dealt with within a few hours, or when the adversarial nature of the proceedings would render the claim pointless.

Additionally, it is possible to request provisional measures within pending proceedings (standard infringement proceedings on the merits or cease-and-desist proceedings). For example, in such proceedings on the merits, the president may order the establishment of a confidentiality club to protect the parties' trade secrets.

In patent cases, both injunctions (to obtain a cease-and-desist order) and summary proceedings (to obtain provisional measures) are common procedures used by patentees.

Belgian law also offers a powerful evidence-gathering tool in IP matters: the saisie-description. This measure allows a patentee to request the president of the Enterprise Court, usually on a unilateral basis, to appoint a court expert to enter the alleged infringer’s premises and describe the allegedly infringing products, processes or documents. The measure is intended to preserve evidence of infringement and is frequently used prior to initiating infringement proceedings. Depending on the circumstances, the court may authorize either a purely descriptive seizure or, in exceptional cases, the seizure of samples or documents. The patentee must demonstrate a prima facie valid IP right and indications of infringement.

Triggers for seeking a preliminary injunction in Patent / SPC matters

Provisional measures are primarily aimed at maintaining a fair status quo during the period from the emergence of the dispute to its resolution. As such, the patentee’s claim must be limited in time and aimed at resolving the situation on a provisional basis only. Provisional measures will only be granted if equally effective measures cannot be obtained through standard infringement or cease-and-desist proceedings.

For example, no provisional measures could be obtained by a patentee who did not yet have a product containing the patented substance that was ready to be placed on the market. The court considered it uncertain whether the product would ever be able to be placed on the market. Nor were provisional measures granted to a patentee who had waited six months after the defendant’s challenge to initiate summary proceedings.

Provisional measures can, for example, be obtained when the defendant (after having formally been put on notice) intends to enter the Belgian market. In a recent case, the president of the court granted a provisional measure on a unilateral petition in a dispute concerning an SPC for medicinal products, in which a generic competitor had formally undertaken not to enter the market but, despite that undertaking, had nevertheless started to stockpile and offer its products for sale on the Belgian market.

The fact that the patentee first attempts to stop the infringement by amicable means does not deprive him of the necessary urgency to request provisional measures through summary proceedings if this fails.

Penalty payments

Belgian courts commonly attach penalty payments (astreintes) to injunctions and provisional measures in order to ensure compliance with the court’s order. These penalty payments may accrue per day of non-compliance, per infringing act, or per product placed on the market in breach of the order. The amount is determined by the court and must be sufficiently deterrent while remaining proportionate. If the order is not complied with, the patentee may seek enforcement of the accrued penalty payments before the competent court.

Protective letter

A party anticipating a unilateral request for provisional measures may file a protective letter with the president of the Enterprise Court. In such a letter, the potential defendant explains why provisional measures should not be granted or why the court should first hear the parties on an adversarial basis.

While not expressly regulated in Belgian procedural law, protective letters are increasingly used in practice, particularly in patent disputes where ex parte measures such as saisie-description or urgent injunctions may be requested.

Is a bond or cross-undertaking payable when filing a preliminary injunction application?

Not automatically. However, the judge ordering the provisional measures may make them subject to appropriate security or an equivalent guarantee for compensation for any damage suffered by the defendant. In practice, such a request has previously been rejected due to a lack of evidence that the patentee would be unable to compensate the defendant in the event of a claim.

Additionally, foreign patentees may be required, at the defendant’s request, to deposit a certain amount as security if they wish to bring a claim before a Belgian court. This security must cover the costs and damages arising from the proceedings to which they may be ordered to pay.

Right to Appeal

An appeal may be lodged against a decision ordering provisional measures in accordance with the normal rules of procedure. In principle, the appeal must be lodged within one month of the decision being served. Both the factual and legal aspects will be reassessed on appeal.

If the order was granted on the basis of a unilateral petition, third-party opposition may be lodged. The proceedings will be conducted before the judge who ordered the provisional measures.

Takeaways

A patentee wishing to seek provisional measures in Belgium must ensure that they can substantiate the necessary elements.

First and foremost, they must demonstrate their interest and capacity. For example, in addition to the patentee themselves, only the exclusive licensee or usufructuary has an independent right of action.

It will further be essential to demonstrate the urgency of the request; provisional measures will not be granted if they are not necessary to prevent damage of a certain magnitude or serious inconvenience, or if the situation can be resolved through ordinary legal proceedings. The attitude of the parties themselves may also be taken into account.

In addition, the patentee must:

• have a prima facie valid patent, which in principle is evidenced by the entry in the patent register. SPCs are also prima facie valid. If a patent has already been declared invalid, provisional measures may still be obtained if the patentee can sufficiently demonstrate that its legal remedy against this decision will be legally valid;
• demonstrate prima facie infringement.

In disputes with an international component, it is possible to obtain provisional measures when the patent invoked relates to Belgian territory, even if the offer that infringes a Belgian patent did not originate from Belgian territory but was directed at it.

For further details about patent law in Belgium, see our Patent Litigation Comparator Guide.