BioPheresis Technologies Inc v. State of Belgium, Constitutional Court Belgium, 16 January 2014, Case No 3/2014, with thanks to Eric de Gryse, Simont Braun, for sending in the judgment as well as a summary in English
In a judgment of 16 January 2014, the Belgian Constitutional court answered a request for a preliminary ruling by the Brussel’s Court of Commerce of 17 October 2012 in a case between the US company Biopheresis Technologies Inc. and the Belgian State (Council of Ministers representing the Belgian patent office). The Court of Commerce asked for a preliminary ruling whether the consequence of failing to provide a translation within the strict 3 month deadline set in article 5 of the Act of 8 July 1977 approving a number of international Acts in the field of patents, is a proportional measure in view of the fundamental right on property laid down in the Belgian Constitution and the Convention of Human Rights.
If a European patent is granted in English, the consequence or sanction for missing the deadline to provide a translation in one of the official languages in Belgium (Dutch, French or German), is that the patent has no effect on the Belgian territory, without possibility of restoration (article 5, §2 of the Act of 8 July 1977).
In an earlier judgment of 14 June 2000 the constitutional court answered negatively to the question whether the same rule was against the constitutional principle of non discrimination (read the decision here). Since then the jurisdiction of the Constitutional court has been extended to other fundamental rights.
The Constitutional Court now takes a new look at its earlier case law of 14 June 2000 on the basis of the new arguments raised by the claimant. The sanction that the patent has no effect on the Belgian territory without possibility of restoration, when failing to provide a translation within the strict 3 month deadline, is this time held to be contrary to the Belgian Constitution and to the European Convention on Human Rights. This sanction is considered as a disproportional deprivation of property in view of the legislator’s aim to inform the public and a non-justified damage to the right on property of the patent holder.