Belgium-Selected Compulsory Licensing, Government Use, and Notable Patent Exception Provisions

Royal Decree

Concerning the Development of the Results of Research Funded under Contracts
Concluded by the Ministers Responsible for the Economic Affairs and Science Policy

(of January 18, 1977)

6. -Where the contract awards the intellectual and industrial property in the results of the research to the contractor, the contract shall lay down:

(1) the contractor's obligation to apply in his own name for the patents required to protect the results and to inform the Minister responsible thereof;

(2) the State's right to enjoy for its needs a non-exclusive and irrevocable free license in respect of the patent applications or patents referred to in (1) above.

Such license shall cover the work, the research undertaken and the orders supplied by third parties on behalf of the State.

Patent Law (of March 28, 1984, as last amended on January 28, 1997)

Chapter II

Section I
General Provisions

Art. 3.-1. The following in particular shall not be regarded as inventions within the meaning of Article 2:

(1) discoveries, scientific theories and mathematical methods;

(2) aesthetic creations;

(3) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(4) presentations of information.

2. The provisions of paragraph 1 shall exclude patentability of the subject matter or activities referred to in that provision only to the extent to which a patent application or a patent relates to such subject matter or activities as such.

Art. 4.-1. The following shall be excluded from the protection afforded by this Law:

(1) new plant varieties of species or varieties covered by the protection set up by the Law of May 20, 1975, for the protection of new plant varieties;

(2) animal varieties;

(3) essentially biological processes for the production of plants or animals.

The present provision shall not apply to microbiological processes or to the products obtained thereby.

2. Patents shall not be granted for inventions the exploitation of which would be contrary to public policy or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.

Art. 6. An invention shall be considered as involving an inventive step if having regard to the state of the art, it is not obvious to a person skilled in the art. The documents within the meaning of Article 5.3 shall not be con- sidered in deciding whether there has been an inventive step.

Art. 7.-1. An invention shall be considered as cap- able of industrial application if it can be made or used in any kind of industry , including agriculture.

2. Methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body shall not be regarded as inventions which are capable of industrial application within the meaning of paragraph 1. This provision shall not apply to products, in particular substances or compositions, for use in any of those methods.

Section 4
The Rights and Obligations Deriving from Patents and Patent Appiclations

Art. 31.-1. The Minister may grant, in accordance with Articles 32 to 34, a license to exploit an invention covered by a patent:

1 when a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last, has elapsed without the patented invention having been exploited by means of importation or effective and continuous working in Belgium and without the owner of the patent having justified his inaction by legitimate reasons. In the case of a patent whose subject matter is a machine, effective and continuous manufacture in Belgium by the owner of the patent or products obtained by means of that machine may be deemed to constitute exploitation of the patented invention in Belgium, when such fabrication would appear more important for the economy of the country than the fabrication of the machine itself.

A compulsory license on the grounds of failure to work or insufficient working shall only be granted on the condition that the license be given predominantly for the supply of the domestic market;

2 when an invention covered by a patent owned by the applicant for the license cannot be exploited without infringing the rights deriving from a patent granted on an earlier filing, insofar as the dependent patent permits an important technical advance of considerable economic significance in relation to the invention claimed in the dominant patent and on condition that the license is given predominantly for the supply of the domestic market.

2. The applicant for a license must prove:

(1) that in the cases referred to in the preceding para- graph:

(a) one of those provisions applies to the owner of the patent;

(b) he has applied in vain to the owner of the patent for a voluntary license;

1. in addition, when the license is claimed under item (1) of the above paragraph, that he possesses, should a license be granted to him, the necessary means to undertake effective and continuous fabrication in Belgium in accordance with the patented invention.

Art. 33.-1. In the cases referred to in Article 31.1, the Minister shall grant compulsory licenses on request.

2. The request shall be transmitted by the Minister to the Compulsory License Commission to enable the latter to hear the parties, to reconcile them if possible and. where not possible. to furnish the Minister with a reasoned opinion on the justification for the application. The Commission shall attach the file relating to the case to its opinion.

The Minister shall decide on the request and shall notify his decision to the parties by registered letter .

Art. 35.-1. There shall be set up within the Central Council of the Economy a Compulsory License Commission with responsibility for the tasks allotted to it by Articles 33, 36, 37 and 38.

The Commission shall comprise, in addition to the chairman, eight members appointed by the Minister.

Six members shall be nominated in equal numbers by: (a) on the one hand, the organizations representing

industry , agriculture, commerce and the small and medium-sized industrial undertakings;

(b) on the other, the organizations representing the workers and the consumer cooperatives.

Two of the three members nominated by each of the groups referred to in items (a) and (b), above, must be members of the Central Council of the Economy.

Two members shall be nominated on the joint proposal of the groups referred to in items (a) and (b), above, from among the members of the Industrial Property Council.

The Commission shall comprise a number of alternate members equal to that of its standing members. An alternate shall only have a vote when he replaces a standing member of his group.

The Commission shall be chaired by the Chairman of the Central Council of the Economy. When the latter is unavailable, the chair shall be taken by the Secretary of the Council who shall also be Secretary of the Commission. The Chairman shall have a vote.

The secretariat of the Commission shall be provided by the secretariat of the Central Council of the Economy.

The term of office of a member of the Commission shall correspond to that of members of the Central Council of the Economy and shall expire at the same time as the term of office of the latter. It shall be renewable.

When the Council replaces a standing or alternate member, the person appointed shall complete the term of office of his predecessors.

The Commission shall establish its own rules of procedure, which shall be subject to approval by the Central Council of the Economy.

The Commission can only act validly if at least one half of its members are present. Following a second convocation, however, the Commission may validly act whatever the number of members present. Opinions and decisions shall be adopted on a simple majority. In the event of equal votes, the Chairman's vote shall be decisive.

The Commission' s opinions and decisions shall be reasoned.