Interim measures and preliminary injunctions are frequently used in Belgian and European (cross-border) patent litigation conflicts. Belgian courts can generally order such measures upon a prima facie assessment of the validity of the claimant's IP rights, which includes neither a full legal analysis nor a substantial technical examination.
In the context of a European patent, defendants often tend to rely on national or foreign non-final decisions invalidating the patent in some of the territories. Based on the principle "foi est due au titre", the majority of the case law related to preliminary injunctions and the prima facie assessment apply the presumption of validity of a patent that is in force, notwithstanding the existence of (foreign) judgments invalidating the patent.
In two decisions, one of January 5 2012 (Novartis v Mylan) and another of June 24 2013 (Lundbeck v Eurogenerics), the Belgian Supreme Court considered that in the context of preliminary injunctions, a European patent remains prima facie valid even though the patent has been revoked by the Opposition Division of the European Patent Office or by an invalidating decision of a court in first instance. Indeed, due to the suspensive effect of the pending appeal, the patent may still be presumed valid until the final outcome in the invalidity proceedings and the judge seized for interim measures could still grant those based on the title presumed valid until a final decision on the merits.
In its decision of September 12 2014, the Supreme Court refined its case law considering that even if the court seized for preliminary injunctions or interim measures has still to assess the validity of the claimant's right at first sight, it shall also "take into account all facts and circumstances invoked by the parties relating to the validity of the patent".
As a result, a court seized for preliminary injunctions cannot ignore a non-final decision invalidating a patent at first instance, even if the challenged patent is still presumed valid. In the same way, a court may not disregard the prior invalidation of other branches of the European patent and it will have to explain its decision if it deviates from the previous findings. According to some authors, such a foreign decision may even create – under the Brussels I Regulation – a presumption of invalidity in relation to the Belgian branch of the European patent.
The decision seems coherent and has to be welcomed, even if the procedural situation of the plaintiffs in Belgian patent litigation conflicts may become more difficult, especially if some branches of a European patent have already been declared invalid by national courts.
On the other hand, the situation of defendants may be considered to have improved since they may try to rely upon invalidity decisions concerning some branches of a European patent in order to contest the prima facie validity of the right upon which the claim for a preliminary injunction is based.
As we have seen, the courts in prima facie proceedings have to take into consideration non-final invalidity decisions as well as the circumstances that led to such decisions and may not reject the argument based for example on the mere finding that the foreign decision has no effect in their jurisdiction.