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18 March 2019
Preliminary injunctions are rarely granted on an ex parte (or unilateral) basis in Belgium and adversarial debates are considered a cornerstone of legal proceedings which can be deviated from only in the case of so-called 'absolute necessity'.
This high threshold essentially requires that the petitioner, which in the cases examined in this article are patentees, is cornered in such a way that, despite its diligent course of action, adversarial proceedings do not allow it to obtain the requested measure in time to prevent an imminent threat of serious and irreparable damage.
Ex parte interim measures have been granted in at least four patent disputes in recent years, which helps to shed light on the circumstances under which patentees can consider them to be a measure of last resort to stop a threat of infringement.
Article 584 of the Judicial Code provides that the president of the competent court can order interim measures in urgent matters. In patent infringement disputes, it is further required that patentees can rely on a prima facie valid right that is prima facie threatened with infringement.
If a petitioner wishes to obtain interim measures on an ex parte basis, in addition to the above requirements, they should also demonstrate absolute necessity. This implies that the requested measures are so urgent or of such nature that the petitioner cannot adequately protect its rights via adversarial preliminary injunction proceedings, even with a reduction of the normal summoning period.
Only in such cases is an exception to the essential principle of an adversarial debate deemed appropriate. The president of the competent court must examine whether the absolute necessity requirement is complied with at the moment that the petition is lodged. Reference in case law is made to the following types of absolute necessity situation:
In the context of patent infringement disputes, the presidents of the Brussels enterprise courts, which are exclusively competent to deal with such disputes, have granted interim measures on an ex parte basis in four cases concerning attempts to launch a generic product onto the market.
Market entry close to hearing in inter partes preliminary injunction proceedings
In one case, a generic product became reimbursable on 1 August 2017 and the generic company intended to enter the market on the same date, despite inter partes preliminary injunction proceedings having already been initiated and a hearing having been set for 22 August 2017.
The court president considered that the patentee, despite having taken the necessary steps in time, risked being confronted with market entry and would face significant and irreparable damage, which could not be avoided through adversarial proceedings. Interim measures were imposed on an ex parte basis awaiting the outcome of the inter partes preliminary injunction proceedings.
Notice of market entry combined with request for reopening of inter partes preliminary injunction proceedings
In another case, after inter partes preliminary injunction proceedings had been taken into deliberation in October 2017, a generic company gave the patentee notice that it intended to enter the market within four weeks. At the same time, it requested to reopen the inter partes preliminary injunction proceedings because of a foreign decision on the merits that had intervened following the hearing and had declared the foreign tier of the same European patent invalid.
The court president granted interim measures on an ex parte basis pending the inter partes preliminary injunction proceedings.
Last-minute notice of market entry answered with inter partes and ex parte action
A third case involved three generic companies, one of which had launched invalidity proceedings regarding a dosage patent, but none of which had given notice of an intention to enter the market. In November 2017, after the patentee had sent notice letters close to the expiry of the compound patent, the three generic companies stated that they would not respect the dosage patent. The patentee launched inter partes preliminary injunction proceedings and simultaneously applied for an ex parte preliminary injunction.
The interim measures were granted ex parte awaiting the outcome of the inter partes preliminary injunction proceedings. However, two of the generic companies applied on an ex parte basis for a suspension of the ex parte interim measures, which was ultimately granted by the Brussels Court of Appeal.
Market entry in violation of undertaking to give two months' notice
In the most recent case, a generic company had committed to the patentee to give two months' notice if it intended to enter the market. However, in October 2018 the generic company launched its product on the Belgian market without notifying the patentee.
The court president granted interim measures on an ex parte basis for violation of the agreement between the patentee and the generic company, and pending the outcome of the inter partes preliminary injunction proceedings that the patentee was obliged to initiate within a week.
Some lessons for ex parte (or unilateral) interim measures can be learned from the four cases examined above. First, patentees should act diligently and take the necessary initiatives to obtain measures through adversarial proceedings in a timely manner. Second, ex parte interim measures can be envisaged when, despite such timely initiatives, the alleged infringer intends to enter the market and is unwilling to await the outcome of inter partes preliminary injunction proceedings. Third, the requested ex parte interim measures should only be requested awaiting the outcome of inter partes preliminary injunction proceedings and cannot replace inter partes interim measures.
For further information on this topic please contact Kirian Claeyé or Lauranne Truyens at ALTIUS by telephone (+32 2 426 1414) or email (firstname.lastname@example.org or email@example.com ). The ALTIUS website can be accessed at www.altius.com.
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