31 July 2002

Ruben Peeters

The Belgian procedure of saisie-description is an efficient ex parte tool that enables the holder of an intellectual property right to obtain measures of discovery and seizure against infringements of their intellectual property rights. The suspected infringer does not receive any advance notice of the visit by a court-appointed expert who can take samples of the alleged counterfeit, analyse them, and draft a report that will serve as evidence in proceedings on the merits.

In patent litigation, it had been the explicit intent of the Belgian legislator to obtain a certain degree of specialisation of the courts. Both the patent law and the procedural laws organising the "saisie description" designated only five courts as having jurisdiction to grant this discovery measure for patent infringement. Only the five Judges of Seizures having their seat in one of the five Belgian courts of appeal were empowered to grant them. It was hoped that by limiting the number of courts for this type of action, the courts would gain a larger degree of experience and expertise.

When implementing the Software Directive, the Belgian legislator wanted to achieve a comparable degree of specialisation, and designated only the same five courts of first instance that have their seat with the court of appeals as having exclusive jurisdiction for matters relating to software infringement. The question remained however whether this rule of specialised jurisdiction also applied to requests for saisie-description relating to software infringement. Although the Belgian Software Protection Act dates from 1994 and has been applied numerous times since then, the Belgian courts had never been explicitly confronted with this issue.

On 9 July 2002, Bird & Bird obtained a judgment from the Judge of Seizures in Louvain retracting an Order authorising "saisie description" for lack of jurisdiction. The ex parte Order had been granted at the request of the U.S. software company Autodesk. The court held that it had no jurisdiction for this type of request and referred the claim to the Judge of Seizures in the Court of First Intance in Brussels. The court held that all the evidence gathered by the court-appointed expert was therefore illegally obtained and enjoined Autodesk from using it in court.

An appeal has been filed against this decision. If confirmed by the Court of Appeals, it would give greater legal certainty and specialism to owners of software rights as well as to alleged infringers. This would be welcomed because the present policy adopted in software infringement matters is far from coherent and gives rise to many disputes regarding what constitutes an infringement, what are the rights of the court-appointed expert, what can be "seized" as infringement in software matters and how a software program can be "seized" or "sealed".

Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.