In an apparent move away from its own recent case-law, the Belgian Court of Cassation (“Cour de Cassation” / “Hof van Cassatie”) has confirmed the necessity of a true assessment of theprima facie validity of (European) patents within the framework of Belgian preliminary injunction and descriptive seizure (“saisie-contrefaçon” / “beslag inzake namaak”) procedures.

The decision of 12 September 2014 may herald a new era in patent litigation in Belgium, which is for most long overdue.

In its decision, the Court stated that lower courts may not simply set aside:

  1. a foreign decision nullifying the corresponding national part of a European patent, and 
  2. a decision on the merits nullifying a patent, when such decision has not yet entered into force (because of an appeal procedure with suspensive effect which has been initiated against such decision),

as irrelevant because (a) not issued in relation to the Belgian part of the same European patent, and (b) not yet entered into force, respectively. 

The foregoing opens the door to a true assessment of the prima facie validity of (European) patents. Indeed, with its decision the Court seems to distance itself from its earlier – and relatively recent – decisions of 5 January 2012 and 24 June 2013, which have been interpreted by some as creating a quasi-insurmountable presumption of validity of (European) patents in Belgium, even in cases as in (1) and (2) above.