Applying for provisional measures
Belgian procedural law sets out several procedures for obtaining provisional measures.
Firstly, the most common route is through preliminary injunction (PI) proceedings (Article 584 Belgian Judicial Code). These are provisional proceedings, intended to temporarily regulate the situation of the parties until a decision on the merits is rendered. To initiate PI proceedings, regardless of whether it relates to patents, several conditions must be met. The most important requirement is urgency, which must be present both when proceedings are initiated and when the judgment is delivered. Additionally, there must be a prima facie valid patent, including a prima facie infringement of the patent. These proceedings are usually inter partes, meaning that both parties are allowed to present their arguments. Provisional measures may also be requested ex parte. In such cases, however, extreme urgency must be demonstrated because this is a much higher standard to achieve.
Secondly, Article 19(3) of the Belgian Judicial Code allows a party to request the court to take preliminary measures at any stage of proceedings on the merits. Urgency is less of a requirement for these measures and is not considered the same as for normal PI proceedings. This mechanism, therefore, provides an accessible means of obtaining provisional relief during ongoing proceedings.
Thirdly, for intellectual property rights specifically, there are accelerated proceedings on the merits. These are conducted ‘as PI proceedings’, but without the requirement to prove urgency. Importantly, unlike PI proceedings, the judgment from these accelerated proceedings does not provide for a provisional title but delivers a decision on the merits of the case. Therefore, these proceedings cannot be regarded as processes aimed at obtaining provisional measures stricto sensu. Nonetheless, they are significant given the speed at which rights holders can secure permanent injunctions. It is also worth noting that damages cannot be claimed in these proceedings.
It should be noted that both PI proceedings and accelerated proceedings on the merits in patent cases are within the exclusive competence of the President of the Brussels Commercial Court.
Evidence required
In PI proceedings, provisional measures may be granted when urgency is demonstrated, the patent right appears prima facie valid, and a prima facie infringement is established.
Since a ruling of the Belgian Supreme Court from 26 June 2014, the standard of proof linked to the prima facie validity of the patent has increased. Before this judgment, judges in PI proceedings refrained from examining issues relating to the (in)validity of the patent invoked. However, after the judgment, the Supreme Court introduced a new standard. Following the judgment, PI judges must now consider all relevant circumstances relating to validity, such as decisions by the EPO or foreign decisions on the merits about validity.
Factors that the courts take into consideration
As explained above, in PI proceedings, the courts do not decide on the merits of the case. The judge's decision is based on a prima facie assessment of the case. Nevertheless, the judge is not prevented from examining the substance of the case where this is necessary to determine the most appropriate provisional measures.
When determining provisional measures, the court must consider multiple factors relating to the patent invoked:
First, the judge must determine whether the patent appears to be valid on the face of it. This assessment has a dual dimension. On the one hand, prima facie validity means that the patent is presumed valid and that its validity does not need to be established beyond dispute. On the other hand, the nuance introduced by the Supreme Court in 2014 (see above) must also be taken into consideration.
Secondly, a prima facie infringement must be established, meaning that the judge must determine whether the alleged infringement of the invoked patent cannot reasonably be disputed.
Finally, the judge must balance the interests involved, including the public interest. This involves assessing whether the refusal to grant provisional measures would cause greater harm than their execution. During this assessment, the judge will also consider factors such as the risk of substantial harm or even irreparable damage.
Obtaining provisional measures
There is no fixed period imposed by law for introducing the PI procedure. Instead, applications should be made as soon as practicable and where urgency can be demonstrated.
It is intrinsic for PI proceedings that there is a certain sense of urgency by which the requested measures should be obtained, meaning that an immediate decision is needed to prevent damage of a certain magnitude or serious inconvenience. It is therefore important that the claimant does not delay in bringing a PI action. This differs from ordinary proceedings on the merits where a swift handling of the case is less crucial to the outcome. There is no specific deadline, and urgency will be discussed on a case-by-case basis. Consequently, and precisely because urgency is fundamental to PI proceedings, the decision must be made promptly.
Enforcement
For the provisional measures to be enforceable, the decision must be served on the defendant by a bailiff. The decision always specifies how long after service the provisional measures will be enforceable. Appealing the decision does not affect the enforceability.
It is noteworthy that the measures ordered in PI proceedings are not binding on the court, which must then rule on the merits of the case and therefore cease to have effect if no claim on the merits is brought within a certain period. This period is specified in the decision.
Appeal
A PI decision can be appealed to the Brussels Court of Appeal within one month of being served on the parties. It is important to note that the appeal does not have a suspensive effect.
If the appeal judge overturns the provisional measures, the party affected may seek appropriate compensation if it claims to have suffered harm as a result. Whether damages are awarded depends on the specific circumstances under which the measures were annulled.
If a patent holder obtains provisional measures, but it later becomes apparent that they were unjustified, for eg, the patent is declared invalid or no infringement is established, it will be difficult for the defendant in PI to recover damages. In these cases, the defendant must prove fault on the part of the patent holder, ie, prove that they knew that the patent was invalid or that there was no infringement.
Conversely, when a patent holder did not obtain provisional measures and it is later proven that this refusal was unjustified because the patent was valid or the defendant infringed the patent, the patent holder will relatively easily recover damages. In this case, the defendant's fault will have already been determined.
