2 NEWS FOR THE BELGIAN PATENTS

END OF THE 6-YEAR PETTY PATENTS IN BELGIUM AS FROM JANUARY 8, 2009

The Belgian law of March 28, 1984 offered the choice between, on the one hand, a Belgian patent having a 20 year term when a search report was requested and, on the other hand, a 6 year term Belgian patent —sometimes called “petty patent”— not accompanied by any search report. The latter option is not available anymore.

In particular, no more 6-year Belgian petty patents will be granted for applications filed as from January 8, 2009 and the last petty patents will be published within about 18 months from said date (i.e., around July 2010). After that, all Belgian patents will be published together with a search report and a preliminary opinion (called extended search report) established by the European patent office (EPO) on behalf of the Belgian patent office.

What effects will this have for the inventors?  

The fact that the extended search report for a Belgian patent application is established by the EPO offers the great advantage that the inventor is aware of EPO’s opinion on the merits of the claimed invention when filing a second application with the EPO, claiming priority of said Belgian patent application.

Furthermore, the official search fee to be paid to the Belgian patent office for establishing a extended search report for a Belgian patent application was substantially reduced in March 2007 with respect to the equivalent search fee for a European patent application, thus allowing to obtain the same extended search report at a lower cost. It was observed, however, that the EPO usually requires more time to establish an extended search report for a Belgian patent application than for a European one, thus leaving less time to the inventor for amending the application in view of a second filing within the 12-month priority period.

To conclude, although Belgian patents are still granted without undergoing any substantive examination, both inventors and third parties will now be able to assess the patentability of a claimed invention based on the extended search report; and this at a reasonable price.

This amendment constitutes good news in terms of legal certainty.

THE GERMAN LANGUAGE MAY BE USED FOR THE VALIDATION OF EUROPEAN PATENTS IN BELGIUM

There has been for some time some discussion as to whether the German language could be used to validate European patents in Belgium. The Belgian law of July 8, 1977 (addressing inter alia the adhesion to the European Patent Convention (EPC) of 1973) used indifferently the expressions “official languages” (i.e., French and Dutch) and “national languages” (i.e.,  French, Dutch, and German), which have different meanings.

With the implementation of the European Patent Convention of 2000 (EPC2000), a new Belgian law (law of April 21, 2007) was drafted and enforced. The Belgian legislators took this opportunity to get rid of this unclarity by using the expression “national languages” only, which comprise French, Dutch, and German. It follows that it is clear that a European patent drafted in German does not need any translation for its validation in Belgium. It follows also that a European patent drafted in English may be validated in Belgium by filing a translation thereof in the German language. The Belgian patent office confirmed with its information letter of December 16, 2008, that this would apply to all European patent applications filed after December 13, 2007 (under EPC2000).

What effects will this have for the inventors?  

As long as Belgium does not ratify the London agreement, this clarification concerning the use of the German language to validate European patents in Belgium allows the patentees to use a single translation in the German language to validate European patents drafted in English in both Belgium and Austria. Note that Switzerland, Lichtenstein, and Germany ratified the London agreement and therefore do not require any translations to validate European patents.

Note also that the translation of the European patents validated in Belgium are published by the Belgian patent office for information only, the true text being the one in the language of the proceedings before the EPO.


Brussels (La Hulpe), January 2009


Marie-Paule Vandeberg
Chief Patent Attorney (EPA)
&
Marco Connor
Head of Patent Practice