CAPE IP wins case before Constitutional Court: Belgian law does not discriminate against holders of process patents

In the context of a patent dispute between Europlasma nv, a Belgian company represented by CAPE IP, and UK
company P2i Ltd., the question arose whether the
difference in requirements for infringement of product patents and process
patents gives rise to a form of discrimination against holders of process
patents.

Under Belgian law, the offering of a patented process is only infringing if such an
offer is made for use within the Belgian territory (Article XI.29, §1, b of the Belgian Code on Economic Law). In
addition to this territorial limitation, there is also a knowledge requirement:
for the offer to be infringing, the party must have (or should have) known that
the use of the process is prohibited. By contrast, the mere offering of a
patented product constitutes an
infringement, without any additional requirements.

Europlasma defended the position that, for an offer of
an (allegedly) infringing process to be infringing under Belgian law, proof is
required that the offered process is actually used on the Belgian territory.
P2i vehemently opposed this view, arguing that the offer of a patented process
qualifies as a direct infringement and is therefore infringing in itself,
without any need for subsequent use of the process at issue. In subsidiary order,
P2i argued that, if such an additional condition were to be set, this would
constitute a form of discrimination in the sense of Articles 10-11 of the Belgian Constitution, and/or an unjustified impingement upon
the right to property of process patent owners, as enshrined in Article 16 of
the Belgian Constitution jo. Article 1 of Protocol 1 to the European Convention on
Human Rights.

On 4 February 2016, the Commercial Court of Ghent held
that it is required for an (allegedly) infringing process to be offered for use
on the Belgian territory. In addition, the Commercial Court referred a question
to the Belgian Constitutional Court to obtain guidance on the possible
discrimination and/or infringement of the right to property of process patent
owners as compared to product patent owners.

In its judgment dated 28 September 2017, the Constitutional Court ruled that Article XI.29, §1, b BCEL is not contrary
to either the constitutional principles of equality and non-discrimination or
the fundamental right to property in requiring that the offer of the infringing
process be made for use on the Belgian
territory.

In relation to the issue of alleged discrimination, the Constitutional
Court held that holders of product patents and holders of process patents are comparable when it comes to their right
to prohibit third parties from exploiting their invention.

The Court then went on to perform its multi-step proportionality analysis in relation to
the difference in scope of protection offered by a product patent vis-à-vis a
process patent, concluding that the abovementioned territoriality requirement
does not disproportionately detract from the rights of process patent owners.

In this regard, the Court pointed out that the difference
in treatment is based on an objective
and relevant criterion. Indeed, the abovementioned territoriality
requirement stems from a compromise, reached between several member states of
the (then) European Economic Community (EEC) in the context of the negotiations
for the Community Patent Convention in 1975. The inclusion of a territoriality
requirement is therefore the result of a conscious choice made to attain the ultimate
goal of a unitary patent title for the EEC. Although the Community Patent
Convention never actually entered into force, the Belgian legislator expressed
its wish to incorporate its principles on the scope of patent protection into
Belgian law. The Constitutional Court furthermore refers to the Unitary Patent Court
Agreement dated 19 February 2013, which builds upon the old Community Patent
Convention of 1975 and is also aimed at realising a unitary patent title, valid throughout the greater part of
the European Union.

The Constitutional Court furthermore confirms the proportionality of the territoriality
requirement, noting that holders of a process patent do have the right to use
the patented process on the Belgian territory and that they may prevent others
from offering the patented process for use on the Belgian territory.

In relation to P2i’s arguments on the right to property, the Constitutional
Court rules that, while the requirement of territoriality may be regarded as a
limitation of a process patent owner’s right to property, such a limitation is
prompted by the Belgian legislator’s wish to contribute to a more uniform
international protection of patents and that it is proportionate to this
legitimate aim.

CAPE IP is very pleased with this judgment and with
its express aim to ensure the coherence of  Belgian patent law with the unitary patent
system, which many expect to come into force in the beginning of 2018.