Re-establishment of rights now available

Human beings from time to time make errors and that is why most of patent laws have a provision for restitutio in integrum. The Belgian patent law only had previously a provision for re-establishing a patent in case of non-payment within the time limit of a renewal fee. The provision for reestablishment of right provided further only a two-month period for requesting re-instatement, from expiration of the grace period. This was clearly not a real re-establishment of right since the loss of right is rarely discovered at that time!
On March 13 2014, an amended Belgian patent law came into force opening the re-establishment of right for all loss of patent or patent application rights. The provisions of the article relating to the re-establishment of right are similar to that known under the European Patent Convention (Article 122). So the request has to be filed in writing within two months of the removal of the cause of non-compliance with the period, but at the latest within one year of expiry of the unobserved time limit. This provision specifically applies to validations, validations after opposition and payment of annuities, but also to any matter yielding to a loss of right. In case of a loss of priority, the request has to be filed within two months from the end of the priority year. Belgium will also apply the criteria of all due care.
We are of course very happy that this long time need has now been met and that we finally can offer this reestablishment to applicants and patent owners who unfortunately lost their rights in Belgium. The application of the two-month period is probably applicable only when not yet expired after the entry into force of this amended Belgian Patent Law, but this will be confirmed based on practical issues dealt with by the patent office. In view of the one-year time limit and taking into account that also within the last year we often received a request for reestablishment, we advise you to check whether this new law could not now offer a solution for a request you had in the past year.

Author: Ludivine Coulon - Publisher: Managing IP