Belgian parliament considers draft legislation implementing UPC Agreement provisions into national law


On 6 November 2017, the Belgian government submitted to the Chamber of Representatives (the lower chamber of the Belgian Federal Parliament) a ‘Bill amending various patent provisions in relation to the implementation of the unitary patent and the unified patent jurisdiction’ (docket here, text of the bill in Dutch and French here).  The draft legislation introduces amendments to Title I of Book XI of the Code of Economic Law, which contains the Belgian legislation on patents, and is aimed at harmonising its provisions with those of the UPC Agreement where relevant, dealing primarily with exemptions from patent infringement.  The bill was considered and unanimously approved by the Chamber’s Committee on Economic Affairs on 29 November 2017.  Belgium has already ratified the UPC Agreement, and has made a declaration regarding its provisional application.  It is expected that Belgium will establish a local division of the UPC in Brussels, with the Court operating in four languages: French, Dutch and German (the national languages) and English.

The bill’s Explanatory Statement highlights the government’s intention to harmonise the scope of exemptions from infringement in relation to all patents having effect in Belgian territory so that a UPC or national judge will not have to face the question of whether a patent may have a different scope of protection depending on whether it is a national patent, a classical European patent or a unitary patent, or any arguments that a patent may have a different scope depending on the territory where it is enforced.  Among the key amendments, the bill introduces into the Code of Economic Law a reference to the Bolar-type exemption, which is contained in separate legislation, and amends the wording of this and other exemptions to match that of the equivalent provisions in Article 27 of the UPC Agreement (noting that, where the exact wording differs, it is the legislator’s intention that the provisions of the Code of Economic Law are interpreted in accordance with those of the UPC Agreement).  It also introduces exemptions not previously provided by Belgian law but present in the UPC Agreement, namely those relating to: (i) the use of biological material for the purpose of breeding, or discovering and developing other plant varieties; and (ii) the use of information obtained for the purposes of decompilation and interoperability as allowed under the provisions of the Software Directive 2009/24/EC.  The bill also introduces an amendment intended to allow a patentee who sees its application for unitary effect rejected to still be able to obtain protection in Belgium by means of a classical European patent.  The draft legislation provides for its entry into force when the UPC Agreement itself enters into force.

Gregory Bacon



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