The decision by Belgium, one of only seven of 25 countries so far to have ratified the Unified Patent Court Agreement signed in February 2013, has been challenged in an action filed at the Belgian Constitutional Court by The European Software Market Association (ESOMA) and other plaintiffs.

ESOMA, an organisation which supports the open source movement and opposes software patenting, argues that the unitary patent / UPC legislation violates the Belgian Constitution, discriminates on the grounds of language and denies Belgians a level playing field before the law. Other plaintiffs argue that it is a back door attempt to allow software patents in Europe with no further right of redress after the UPC.  The action also raises an aspect of the Belgian Constitution, (namely Articles 10 and 11), which has been long understood by the Committee drafting the UPC Rules of Procedure to protect the language rights of Belgian citizens. The Rules committee has specifically addressed this concern in R.14.2(b) – “the small local infringer rule”.  This notwithstanding, the Plaintiffs allege that the Dutch-speaking Belgian people have been discriminated against.

At this stage there are no indications as to how quickly the challenge will be resolved, but in any event it is unlikely to have any long term effect on the introduction of the UPC system.