Syral Belgium v. Roquette Frères, Supreme Court, Belgium, 12 September 2014, Case No. C.13.0232.N

Section 1369bis/1 of the Belgian Judicial Code provides that the court ruling on a petition for a counterfeit seizure must examine the prima facie validity of the intellectual property right invoked.

In order to challenge this prima facie validity, defendants frequently cite cases in which the patent relied on has already been ruled to be void. These may be either first instance decisions that are not yet final (otherwise, were the patent to be finally set aside, it could not be founded on for a counterfeit seizure petition) or foreign decisions whose grounds the defendant argues must apply by analogy to the patent relied on in Belgium.

However, challenging the prima facie validity of a patent based on a decision from foreign court or that is not res iudicata is often no easy task. Based on the rule that issued patents are in principle to be considered valid, the Belgian courts often reject such arguments on the ground that a patent is to be considered valid until revoked by a final decision or, at least, one that is provisionally enforceable. Foreign decisions are often rejected outright by the court on the ground – correct in and of itself, though questionable as to its relevance – that they relate to foreign rights that are of no effect in Belgium.

Read the entire decision (in Dutch) here.

Read the entire summary (in English) here.

Head note: Philippe Campolini, Simont Braun