The end of an era: the 6-year patent, also known as "the small patent", a Belgian peculiarity, has been suppressed. Patent applications filed at national level in Belgium are now all subject to a search report and a (non-binding) report on patentability of the invention, and lead to the grant of a title which remains valid for 20 years from the date of filing. With this recent legislative change, Belgium aligns itself with the other members of the European Patent Convention.
However, the long-awaited Community patent, a European-wide title whose grant and validity would be governed at European level, seems far from being achieved: Belgium has once again postponed ratification of the London Agreement, which aims at reducing the linguistic burden linked to the filing of European patents and is often regarded as a prerequisite for the Community patent to materialize…
The end of the 6-year patent
Until very recently, the Belgian patent legislation contained a peculiarity: in order to obtain a 20-year patent, the applicant had to request the Belgian Intellectual Property Office ("BIPO") to carry out a novelty search on behalf of the Belgian government (for a fixed fee of EUR 887). The resulting report provided limited information about prior art documents considered relevant to the patent application. If the applicant failed to request such a report or to pay the corresponding fee, a 6-year patent would be granted with no prior art assessment, that is no guarantee as to the validity of the patent. This type of 6-year patent was known as a "small patent".
However, the Belgian patent system was recently overhauled in two successive stages. The first legislative initiative, which entered into force on 1 January 2008 and thus applied to all patents filed as from that date, was intended to strengthen the validity of the 20-year patent by providing the applicant, in addition to the abovementioned search report, with a non-binding written opinion from BIPO on the patentability of the invention in light of the criteria set forth in the Belgian Patent Act (i.e., novelty, inventiveness and industrial application). This information was communicated to the applicant at an early stage of the grant procedure in order to allow the applicant to decide whether the patent application should be maintained, amended or possibly withdrawn. This information was also published and therefore available to third parties after the grant of the patent. The total cost of the search report and written opinion was lowered to EUR 300 in an effort to make the patent system accessible to more companies.
The legislator has now gone a step further and suppressed the 6-year patent altogether. All patent applications filed as from 8 January 2009 are subject to a novelty search and a written opinion, and the resulting patent will be valid for 20 years, provided the holder pays the annual fees. A so-called small patent will be granted only for applications filed before that date and for which no search fee has been paid.
Even with a 20-year period of protection, however, it is important to note that unlike European patents, Belgian patents are granted without a prior substantive examination: the novelty search and written opinion provide valuable information regarding relevant prior art but do not guarantee that the invention meets all the patentability criteria.
The Belgian Parliament has, once again, postponed ratification of the London Agreement, which has been applicable in 14 countries since May 2008.
This agreement, entered into by contracting parties to the Munich Convention of 1973, is intended to liberalise the linguistic rules applicable to European patents by reducing the national requirements for the translation of patents granted by the European Patent Office ("EPO").
Under the previous regime, which is still applicable in Belgium, a European patent must be "validated" in the designated Member States, which entails substantial costs, notably to translate the entire patent into at least one national language in each relevant country.
Under the London Agreement, only the patent claims have to be translated. However, since the EPO already requires the translation of patent claims into French, English and German, this requirement will already be met in Belgium during the validation stage of a European patent, once the London Agreement is ratified.
However, resistance to ratification of the London Agreement is undermining hopes that a consensus will ever be reached on a true Community patent, a project that has been in the pipeline for the past 30 years.