Bill Implementing Unitary Patent and European Unified Patent Court

On 6 November 2017, the Belgian government submitted a bill to the Federal Chamber of Representatives amending various provisions concerning patents in relation to the implementation of the unitary patent and the unitary patent court (Wetsontwerp houdende wijziging van diverse bepalingen betreffende de uitvindingsoctrooien in verband met de implementering van het eenheidsoctrooi en het eengemaakt octrooigerecht/Projet de loi modifiant diverses dispositions en matière de brevets en relation avec la mise en oeuvre du brevet unitaire et de la juridiction unifiée du brevet) (the “Bill”). The aim of the Bill is to align Belgian legislation with the Agreement on a Unified Patent Court (the “UPC Agreement”).

The main changes brought about by the Bill relate to the rights of patent holders under the UPC Agreement, including the exceptions to these rights. Without these changes, a Belgian judge would have to assess patent claims differently depending on the classification of the patent as a Belgian patent (including a national patent based on a “classical” EU patent application) or as a European patent with unitary effect. The proposed modifications harmonise both types of rights.

The exceptions to the exclusive rights conferred by a patent are contained in the Code of Economic Law (Wetboek van Economisch Recht/Code de droit économique). The Bill proposes to exclude the following acts from the scope of patent protection:

  • the use of biological material for the purpose of breeding or discovering and developing other plant varieties;
  • the acts and the use of the obtained information as allowed under Articles XI.299 and XI.300, in particular, the provisions on decompilation and interoperability: and,
  • the so-called “Bolar” exemptions (which permits the use of patented products without the content of the patent holder in experiments for the purpose of obtaining regulatory approval for medicines). Article XI.34(1)(d) will explicitly refer to the Law of 25 March 1964 concerning Medicines, which already provides for this exception in Belgian law.

Furthermore, a new Article XI.83/1 of the Code of Economic Law will provide for the possibility for a patent holder whose request for unitary effect has been refused to continue enjoying protection under a European patent without unitary effect which, once granted, becomes a bundle of national patents.

As regards jurisdiction, Article XI.337, §1 of the Code of Economic Law attributes to the Commercial Court of Brussels (Rechtbank van Koophandel/Tribunal de commerce) the exclusive competence with regard to any actions concerning patents and supplementary protection certificates (“SPCs”). The Bill amends Article XI.337, §1 of the Code of Economic Law in order to clarify that the UPC is, nevertheless, the competent court for claims listed in Article 32(1) of the UPC Agreement. The Bill fails, however, to take into account the existence of two Commercial Courts in Brussels, namely the Dutch-speaking Commercial Court and the French-speaking Commercial Court.

Finally, the Bill introduces amendments to the Law of 21 April 2007 concerning various provisions relating to the procedure for the submission of European patent applications and the consequences of these applications and of the European patents in Belgium (Wet van 21 april 2007 houdende diverse bepalingen betreffende de procedure inzake indiening van Europese octrooiaanvragen en de gevolgen van deze aanvragen en van de Europese octrooien in België/Loi du 21 avril 2007 portant diverses dispositions relatives à la procedure de dépôt des demandes de brevet européen et aux effets de ces demandes et des brevets européens en Belgique). The amendments create terminological clarity and incorporate references to the European patent with unitary effect.

The Bill provides for the entry into force of a range of its provisions when the UPC Agreement itself will enter into force. By contrast, other provisions will enter into force ten days following the publication of the new law in the Belgian Official Journal.

As regards the entry into force of the Unitary Patent, the EU regulations establishing the Unitary Patent system (No. 1257/2012 and No. 1260/2012) entered into force on 20 January 2013, but they will only apply as from the date of entry into force of the UPC Agreement. This is expected to occur in the course of 2018 if the ratification process is able to overcome the obstacles created by Brexit in the United Kingdom and a constitutional challenge in Germany. These issues could still delay or even derail the entry into force of the UPC Agreement.