EPLAW PATENT BLOG

BE – Belgian Supreme Court prohibits fishing expeditions

Posted: November 26th, 2009

Ineos Manufacturing Belgium NV and Ineos Services Belgium NV / Chevron Phillips Chemical Company LP, Belgian Supreme Court, 26 November 2009, Docket number C.08.0206.N

'Beslag inzake namaak / saisie contrefaçon' – Interpretation of Article 1369bis/1 of the Belgian Judicial Code and Articles 2 and 7, al. 1 of the Enforcement Directive – Interpretation of the term “indications of infringement” – process patent (polymer manufacture)

An “indication of infringement” should be interpreted to mean that the party requesting a 'saisie' needs to submit data which make it plausible that an infringement of its intellectual property right could be taking place. The data thus submitted should, on their own or in connection with each other, be of such a nature that, when assessed prima facie (at first sight), they raise a suspicion of infringement or a threat of infringement.

The Antwerp court of appeal was wrong to conclude that the following facts, alone or in combination, were indications of infringement by Ineos of Chevron’s patents:

a)    that Chevron’s patents were directed to a process;

b)    that, due to the privacy/seclusion of Ineos’ production process, a possible infringement of the said patents could only be determined by examining Ineos’s production process through a “saisie”;

c)    that Ineos had opposed two of Chevron’s patents before the EPO;

d)    that Ineos was a “direct competitor” of Chevron in the petrochemical industry and, in particular, in the sector of polymer manufacture.

The Supreme Court therefore annulled the Antwerp appeal ruling and remitted the case to the court of appeal of Ghent.

Read the judgment (in Dutch) here

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