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No protective letters Appeal before the same court

IMPLEMENTATION OF THE EU LEGAL FRAMEWORK IN THE JUDICIAL PATENT PROCESS: THE EXAMPLES OF BELGIUM AND FRANCE Prof. Dr. Dr. M. Buydens lawyer, professor at the University of Brussels m.buydens@liedekerke.com.

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No protective letters Appeal before the same court

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  1. IMPLEMENTATION OF THE EU LEGAL FRAMEWORK IN THE JUDICIAL PATENT PROCESS: THE EXAMPLES OF BELGIUM AND FRANCE Prof. Dr. Dr. M. Buydens lawyer, professor at the University of Brusselsm.buydens@liedekerke.com

  2. Belgium has implemented the descriptive seizure in 1967 (it even existed in 1854). The descriptive seizure exists in France since ... 1793! • Used in 80% of the infringement actions • Ex parte procedure for gathering evidence on possible infringement through the appointment of a bailiff (France) or an expert (Belgium) visiting the infringer’s premises

  3. Belgium: the expert is chosen (and trained) by the claimant; the expert’s mission is proposed by claimant and usually taken over by the court • France: the bailiff is accompanied by an expert chosen and trained by the claimant (but the bailiff remains the key person) • The defendant is not heard nor anyway informed of the procedure until the description is actually performed • The expert’s report is handed to both parties and filed with the court ruling on the infringement

  4. No protective letters • Appeal before the same court

  5. The expert (Belgium) / bailiff (France) drafts his report: no intervention of the parties  Belgium: the expert has usually two months to do it • The expert (Belgium) / bailiff (France) describes and discloses all information relevant for the alleged infringement + origin/scope • Belgium: The report and its annexes are confidential (not to be divulged or used by the claimant outside of court – art. 1369bis/7 §2)

  6. The claimant must file an action against the infringer within a time period of 20 working days or 31 calendar days (if the latter is longer). Otherwise: no use of the report and, if damages and wrongful descriptive seizure, damages • France: proceedings on the merits and in France • Belgium: action in Belgium or abroad

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