First specialised court rulings analysed

01 April 2010

Since November 1 2007, a change in the Belgian Patent Law has made the courts of the Chambers of Commerce (in the jurisdictions where there is a Court of Appeal) the competent courts to decide patent cases, instead of the courts of first instance. The aim was to centralise the patent cases in fewer courts, five in practice, to ensure that these cases would over time be treated by more experienced judges.

The initial bill proposal aimed to go even further and centralise all patent cases in just one court, namely the Chamber of Commerce of Brussels, following the outcome of the Diplomatic Conference of June 24 to 25 1999 in Paris concerning the reform of the European Patent Convention, which advised member states to take all necessary measures to limit the number of responsible courts. The Belgian Intellectual Property Council who gave advice before the bill was passed welcomed this proposal as it was seen to be in line with the plans on a European level to establish a central European patent litigation court and furthermore the Chambers of Commerce of Brussels was already a centralised court for Community trade marks and Community designs. The Belgian parliament however decided not to adopt this proposal out of fear that the single court would not have enough time and means to treat all cases.

The first decisions of the judges of the Chambers of Commerce which are competent for patent cases are now appearing. Here are a few examples.

In case AR 08/02290, Philips v MSC, concerning imported DVD players originating from a non-licensed manufacturer apprehended by the Belgian Customs, the decision followed a settlement reached between the parties. In the decision, the judge considered the meaning of the term "intermediary" in respect of the admissibility of the complaint, as MSC was merely an importer acting on behalf of a foreign principal. The decision correctly interprets "intermediary" in a broad sense and holds MSC liable for infringement.

In case A/09/05842, Stereolux v Geryl, concerning a patent for bars of a table soccer game, it was held that a still pending Belgian patent application does not provide a basis for allowing a descriptive seizure, as it is not a granted IP right.

In case A/07/09873, Mastercard v Maxcard, a question was raised whether a seizure judge (who orders the seizure of suspected counterfeit goods) has competence to decide on the nullity of a patent. But the decision provides no answer as the case was entirely dismissed.