Patents & Trademarks
Keen to learn more about patents & trademarks in Belgium? Read on! Prepared in association with ALTIUS, a leading law firm in Belgium, this is an extract from The Pharma Legal Handbook: Belgium, available to purchase here for USD 99.
1. What are the basic requirements to obtain patent and trademark protection?
The Belgian legal framework governing patents and trademarks is enshrined in Book XI of the Code of Economic Law (CEL). A specific framework for Benelux trademarks is provided by the Benelux Treaty on Intellectual Property (BTIP).
The basic requirements to obtain patent protection are the requirement of novelty, inventive step and industrial applicability.
In order to obtain trademark protection, the registration of the sign is required. After that, the competent authority will proceed to the effective registration of the sign if it finds no absolute grounds for refusal and no opposition has been filed by a third party.
2. What agencies or bodies regulate patents and trademarks?
The Belgian Office for Intellectual Property (Dienst voor de Intellectuele Eigendom or Office Belge de la Propriété Intellectuelle) is responsible for delivering and managing Belgian titles of intellectual property. In particular, it delivers itself Belgian patents (limited territorially to the Belgium) and accepts applications for both Belgian and European patents. There is also the possibility of filing an “international” application through the Patent Cooperation Treaty (PCT), leading to a bundle of national rights.
Trademarks can be obtained through either the Benelux Office for Intellectual Property (BOIP, granting a trademark limited territorially to the Benelux) or the European Union Intellectual Property Office (EUIPO, granting a trademark limited territorially to the European Union). There is also the “international” registration through the World Intellectual Property Organization (WIPO), which allows the filing of one application in order to obtain trademark protection in the territories indicated by the applicant. WIPO sends the application to the various national trademark offices of the chosen countries, after which the application is subject to the normal granting procedure of each territory.
3. What products, substances, and processes can be protected by patents or trademarks and what types cannot be protected?
Can be protected by a Belgian patent: any invention, for instance products, substances and processes, that are new, industrially applicable and involve an inventive step. This also also includes:
- products consisting of or containing biological material;
- methods for obtaining, editing or using biological material;
- biological material that is isolated or obtained from its natural environment using a technical method provided it is already present in nature;
- inventions pertaining to plants or animals provided that executing such an invention is not technically limited to a certain plant or animal variety.
Cannot be protected by a Belgian patent:
- discoveries, scientific theories and mathematical methods;
- aesthetic creations;
- schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
- presentations of information;
- plant and animal varieties and methods of an essentially biological nature for the production of plants and animals, as well as plants and animals exclusively obtained through such methods including the parts of plants and animals that constitute propagating material. This does not include inventions pertaining to a microbiological or other technical method or a product obtained by means of such a method;
- inventions the commercial exploitation of which would be contrary to the “ordre public” or morality including the protection of the life and health of man, animals or plants or the avoidance of grave damage to the environment, knowing that such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation;
The following are in particular deemed to be non-patentable by virtue of the above:
- methods for cloning people, ie any method including techniques for dividing embryos in order to create a human that possesses the same genetic information in the cell nucleus as another living or deceased human being;
- methods for modifying the germinal genetic identity of man;
- use of human embryos for industrial or commercial purposes;
- methods for modifying the genetic identity of animals that are liable to make these animals suffer without considerable medical use for man or animal, as well as the animals obtained from such methods;
- the human body in the various stages of its formation and development, as well as the mere discovery of parts thereof including a sequence or partial sequence of a gene. This does not include parts of the human body that were isolated or otherwise obtained through a technical method, including a sequence or partial sequence of a gene and this even if the structure of that part is identical to that of a natural part.
Can be protected by a Benelux trademark:
All the signs that can be represented graphically and that are capable of distinguishing the goods or services of an undertaking from those of another, in particular, words, designs, letters, numerals, colors, sounds and shapes of goods or packaging.
Cannot be protected by a Benelux trademark:
- Signs that are devoid of any distinctive character;
- Signs that cannot be represented on the register in a way that allows the public and the competent authorities to determine the clear and precise subject matter of the protection (notably a smell or a taste);
- Signs that have become customary in the current language including the established practices of the trade in terms of signs and indications;
- Signs consisting of a shape which:
- is necessary to obtain a technical result;
- results from the nature of the goods;
- gives a substantial value to the goods;
- Signs likely to deceive or harm the public, meaning signs that are:
- contrary to accepted principles of morality or to public policy;
- likely to deceive the public, with regard to the nature, quality or geographical origin of the goods or services for instance;
- Signs that are not available anymore, meaning signs that are:
- identical or similar to an earlier registered Benelux, European or international trademark designating the Benelux or European territory for identical or similar products or services (or even for different products or services provided that the trademark is renowned);
- identical or similar to a well-known trademark, even if this trademark is not registered in the Benelux or European territory;
- identical to an earlier patronymic name whose owner hasn’t authorized the use, unless the name is widespread;
- identical to a trade name known in the Benelux countries;
- consisting of a work protected by copyright or by a registered design, if the owner hasn’t authorized the use of his work as a trademark;
- identical to a designation of origin or a geographical indication.
4. How can patents and trademarks be revoked?
Once in force, Belgian patents and Benelux trademarks can be revoked by the competent Belgian judicial court. Belgian patents can also be revoked voluntarily by the proprietor of the patent or lapse automatically as a result of not paying the annual patent maintenance fees.
A patent can be revoked on the following grounds:
- The subject-matter does not meet the patentability requirements, among which novelty, inventive step and industrial applicability;
- The invention is not disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art;
- The subject-matter of the patent extends beyond the content of the application;
- The proprietor of the patent was not entitled to the patent.
A trademark can be revoked on the following grounds:
- After the 10 years period, if the renewal fee is not payed;
- If the owner of the trademark so requests;
- If the trademark isn’t used during a 5 years period;
- If the grounds for registration weren’t fulfilled;
- If the trademark is used in order to create a confusion to the public;
- If the trademark (usually verbal) became used in the trade as a generic name for certain goods or services.
5. Are foreign patents and trademarks recognized and, if so, under what circumstances?
By virtue of Article 2 of the European Patent Convention (EPC), a European patent shall, in each of the Contracting States for which it is granted, have the effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention provides otherwise. This entails that, if the European patent is not validated in Belgium, it cannot be enforced through the Belgian courts. Foreign patents will have no effect in Belgium. In order to obtain patent protection, it is necessary to obtain a Belgian patent or a European patent validated in Belgium.
As stated by Article 2.2. of the Benelux Convention on Intellectual Property, the exclusive right in a trademark under the Convention is acquired by registration of a Benelux trademark or of an international trademark designating the Benelux territory. European trademarks are recognized as well, since the title conferred is unified for the European territory. Foreign trademarks have in contrast no legal force unless they constitute “well-known” trademarks.
A distinction is to be made, however, when it comes to carrying out saisie-contrefaçon proceedings (inspection proceedings or discovery), which is in principle possible also on the basis of a foreign patent or trademark.
6. Are there any non-patent/trademark barriers to competition to protect medicines or devices?
The Law of 25 March 1964 on the medicines provides for the “8+2+1” data and market protection approach in line with Directive 2001/83/EC (see also Regulatory, Pricing and Reimbursement Overview, Question 6). This means that the originator company enjoys data exclusivity during the first eight years following the grant of the MA for the reference medicine.
Following the data protection afforded for eight years, the generic company is prohibited from commercialising its product for another two years: this is indeed prohibited for a period of ten years after the grant of the original MA for the reference medicine.
This period of ten years can be extended to eleven years if the MA holder for the reference (originator) medicine obtains one or more new therapeutic indications during the first eight years of this period and if this/these indication(s) is/ are considered an important clinical benefit compared to the existing treatments.
7. Are there restrictions on the types of medicines or devices that can be granted patent and trademark protection?
Please refer to Question 3 above.
8. Must a patent or trademark license agreement with a foreign licensor be approved or accepted by any government or regulatory body?
A license agreement is not subjected to approval by a government or regulatory body. A license agreement pertaining to a patent must be in writing in order to be valid.
A patent or trademark license agreement must be registered with the Belgian Office for Intellectual Property (Dienst Intellectuele Eigendom or DIE) in order to be enforceable vis-à-vis third parties.