Major revision of the patent act coming up

The most significant revision of Belgian patent law since the 1984 Patent Act was approved by the Belgian legislator on January 10, 2011. After careful preparation of the required changes to the implementing regulations, and in synchronisation with efforts by the patent offices of Belgium, the Netherlands, and Luxembourg to introduce a joint electronic patent platform, the revised Patent Act is expected to enter into force early in 2014.

The revision is meant to bring Belgian patent law into compliance with the Patent Law Treaty (PLT) and to align substantive patent law with the provisions of the European Patent Convention as revised in 2000 (EPC 2000).

The purpose of the PLT is to harmonise certain essential points of procedural patent law between the contracting states. When the PLT was concluded in 2000, Belgium was among the original signatories. Until now, Belgium has neither ratified the treaty nor brought its internal law in compliance with its provisions, but that will change with the present revision.

Most importantly, the revised Belgian patent act will have a lower threshold for according a filing date to a patent application and offer a more generally applicable procedure for re-establishing lost rights if due care can be proved.

It is important to note that the re-establishment procedure will also apply to a failure to file the required translation of a European patent to be validated in Belgium, an omission for which no redress was possible until now (readers are reminded that Belgium is not a party to the London Agreement, and that filing a translation remains necessary for European patents granted in English).

EPC 2000, which entered into force on December 13, 2007, not only adapted the EPC to the requirements of the PLT (the European Patent Organisation is a signatory of the PLT as an intergovernmental organisation), but also introduced a number of changes to substantive patent law.

As far as the effect of these changes on European patent applications and European patents validated in Belgium is concerned, the applicability of EPC 2000 is ensured in part by the self-executing nature of the latter’s provisions and in part by the explicit provisions of the 2007 act that implements EPC 2000.

The present amendments to the Belgian Patent Act harmonise the substantive provisions governing Belgian patents with those governing European patents under EPC 2000. Accordingly, the Patent Act will now have a TRIPS-compliant definition of the domain in which Belgian patents may be granted (“in all fields of technology”, cfr. Article 52[1] EPC 2000), an explicit legal basis for the patentability of further medical indications (cfr. Article 54[5] EPC 2000), and clear instructions to consider equivalents of elements of the claims when determining the scope of protection of a patent (cfr. Article 2 of the Protocol on the Interpretation of Article 69 EPC).

Finally, the revision of the Patent Act takes care of some minor inconsistencies in the law and introduces some changes of a general nature, such as the publication of all patent applications 18 months after filing or priority date (even if a patent is not granted at that time), provisions to allow electronic filing and prosecution of patent applications, and a systematic treatment of revocation and renunciation of patents by their proprietor.

For a number of years now, companies subject to Belgian corporate tax and with a distinct research division have been able to benefit from a significant reduction of the taxes due on income that can be attributed to patented inventions, provided that a patent is in force either in the country of production or the country of sale.

This measure has increased many applicants’ interest in the quick and sure national route to Belgian patents (as opposed to the Patent Cooperation Treaty route and the European route, which involve substantive examination of patent applications).

As of income year 2013, the requirement of having a proper research division is waived for small sized enterprises, such that the tax benefits associated with patenting commercially important inventions will now be available to even the smallest companies. In this context, the present modernisation of Belgian patent law, both at the procedural level and at the substantive level, is certainly welcome.