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Implementation of EU Legal Framework in Judicial Patent Process

Learn about the implementation of the EU legal framework in the judicial patent process in Belgium and France. Discover how the descriptive seizure is utilized in patent infringement actions and the differences in procedural methods between the two countries.

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Implementation of EU Legal Framework in Judicial Patent Process

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  1. IMPLEMENTATION OF THE EU LEGAL FRAMEWORK IN THE JUDICIAL PATENT PROCESS: THE EXAMPLES OF BELGIUM AND FRANCE Prof. Dr. Dr. M. Buydens lawyer, professor at the University of Brusselsm.buydens@liedekerke.com

  2. Belgium has implemented the descriptive seizure in 1967 (it even existed in 1854). The descriptive seizure exists in France since ... 1793! • Used in 80% of the infringement actions • Ex parte procedure for gathering evidence on possible infringement through the appointment of a bailiff (France) or an expert (Belgium) visiting the infringer’s premises

  3. Belgium: the expert is chosen (and trained) by the claimant; the expert’s mission is proposed by claimant and usually taken over by the court • France: the bailiff is accompanied by an expert chosen and trained by the claimant (but the bailiff remains the key person) • The defendant is not heard nor anyway informed of the procedure until the description is actually performed • The expert’s report is handed to both parties and filed with the court ruling on the infringement

  4. No protective letters • Appeal before the same court

  5. The expert (Belgium) / bailiff (France) drafts his report: no intervention of the parties  Belgium: the expert has usually two months to do it • The expert (Belgium) / bailiff (France) describes and discloses all information relevant for the alleged infringement + origin/scope • Belgium: The report and its annexes are confidential (not to be divulged or used by the claimant outside of court – art. 1369bis/7 §2)

  6. The claimant must file an action against the infringer within a time period of 20 working days or 31 calendar days (if the latter is longer). Otherwise: no use of the report and, if damages and wrongful descriptive seizure, damages • France: proceedings on the merits and in France • Belgium: action in Belgium or abroad

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