In a judgment rendered on 12 September 2014, the Court of Cassation has broken with its traditional, strictly formalistic approach to the assessment of the prima facie validity of the Belgian component of a European patent.
On 12 September 2014, the Court of Cassation ruled that the trial court, in assessing the prima facie validity of the Belgian component of a European patent, may not simply disregard the annulment of a corresponding foreign component of the European patent. The foregoing applies when the trial court sets aside the annulment because it is not yet final as well as when this happens because the patent relates to a different territory. The Court of Cassation held that "Although the annulment of a European patent only has an impact in the territory of that state, this annulment and its underlying motives could be relevant to the assessment of the apparent validity of the patent in another state".
Traditionally, the prima facie validity of the Belgian component of a European patent was accepted notwithstanding the annulment of a (corresponding national) patent at first instance by a court or by an administration (see, for example, Court of Cassation, 5 January 2012). This formalistic reasoning, which disregards the reality of a European title – even though this consists of a bundle of national patents – to the extent that it simply ignores (foreign) decisions regarding essentially the same patent, has now been pushed aside. A court does not comply with its duty to assess the apparent validity by merely establishing that this issue has not yet been determined in a definitive way.
The same reasoning applies where the trial court does not take account of the definitive annulment of the same patent by another court of law. Although the principle of territoriality is inherent to patent law (a patent is only valid in the state in which it was granted), the Court of Cassation takes the view that strict adherence to this principle overlooks a prevailing tendency to look beyond national borders in the context of European patents.
The judgment of 12 September 2014 represents a U-turn in the hitherto dominant case law of the Court of Cassation regarding how the prima facie validity of a European patent should be assessed. This turnaround comes at a time when the Belgian legislator is aiming to make the judicial review of patent law within the Belgian courts an even more specialised process. Indeed, with effect from 1 January 2015, only the Commercial Court of Brussels will have jurisdiction in matters relating to patents.