?Abuse of Rights' in Belgian and French Patent Law - A Case Law Analysis
| Author | Amandine Léonard |
| Pages | 30-50 |
2016
Amandine Léonard
30
1
‘Abuse of Rights’ in Belgian
and French Patent Law
A Case Law Analysis
by Amandine Léonard*
© 2016 Amandine Léonard
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Recommended citation: Amandine L éonard, ‘Abuse of Rights’ in Belgian and French Patent L aw – A Case Law Analysis, 7
(2016) JIPITEC 30 para 1.
Keywords: Patent Law; Patent Litigation; Abuse of Rights; Over-Enforcement of Patents
jurisprudential nature of the principle, an in-depth
and comparative case law analysis has been con-
ducted. Although the number of cases in which pat-
ent holders have been sanctioned for such abuses is
not overabundant, they do provide sufficient leads on
what is understood by Belgian and French courts to
constitute an abuse of patent rights. From this com-
parative analysis, useful lessons can be learned for
the interpretation of the ambiguous notion of ‘abuse’
from a broader perspective..
Abstract: This paper examines what types of
actions undertaken by patent holders have been con-
sidered as abusive in the framework of French and
Belgian patent litigation. Particular attention is given
to the principle of the prohibition of “abuse of rights”
(AoR). In the jurisdictions under scrutiny, the principle
of AoR is essentially a jurisprudential construction in
cases where judges faced a particular set of circum-
stances for which no codified rules were available. To
investigate how judges deal with the prohibition of
AoR in patent litigation and taking into account the
A. Introduction
1
This paper is based on current statements from –
mainly US – commentators claiming that patent
holders “abusively” exercise their patent rights1.
1 Commentaries, blogs and other articles referring to the
term ‘abuse’: T. Molino, “Strengthening the Patent System
by Ending Patent Abuse” (March 2015). R. Bell, “Litigation as
an Abuse: European Commission and US Courts Draw a Line
under ‘Patent Wars’ while Adopting a Common Approach
on Standard Essential Patents”, Business Law International,
15.3 (Sept. 2014). M. Street, “Turning the Tide on Patent
Abuse: Vermont’s New Law Already Inspiring Other States
to Act”, ABA Banking Journal, (Feb. 2014). M. Jones, “Applica-
tion for central amendment of a patent after revocation at
rst instance does not of itself render an appeal an abuse of
process”, J.I.P.L.P. (2014). P. Hall “Patent Law Broken, Abused
to Stie Innovation” (July 2013). T. Worstall, “Is This Ap-
ple Abusing The Patent System Or The USPTO Abusing It?”
(Nov. 2012).
However, there is no clear view regarding what
“abuse” precisely means; even less so from a
European perspective embedded in civil law
tradition. This paper aims to shed some light on
what “abuse” could mean in the eld of patent law
by analysing Belgian and French case law, in which
the principle of the prohibition of “abuse of rights”
(AoR) has been invoked before national courts. It
appears that in the jurisdictions under scrutiny,
the principle of AoR is essentially a jurisprudential
construction where judges found themselves empty-
handed when facing a particular set of circumstances
for which no codied rules were available. Due to its
jurisprudential nature, it is interesting to conduct a
case law analysis and to investigate how judges deal
with AoR, in order to better understand its scope
of application in patent litigation. Although the
number of cases in which patent holders have been
sanctioned for these abuses is not overabundant,
‘Abuse of Rights’ in Belgian and French Patent Law
2016
31
1
they provide sufcient leads on what is understood
by Belgian and French courts to constitute an abuse
of patent rights.
2 The leading research question of the present paper
can be formulated as follows: how do Belgian and
French judges interpret the principle of AoR in
the framework of patent litigation, and what does
it entail? Given the state of the art regarding the
principle of AoR in general, the following hypothesis
is put forward: since, in Belgium and France, patent
cases lie in the hands of non-specialised judges2,
national judges refer to and use the AoR principle
in the same fashion as their colleagues do in more
“traditional” civil law cases (which do not include
elements of IP). Nonetheless, since the principle of
AoR is fact-based and must be assessed in light of all
the circumstances of the case, a certain pattern in
the behaviour of patent holders can be determined to
help judges identify abuses in the specic framework
of patent litigation.
3
This paper will rst discuss the principle of the
prohibition of AoR from a theoretical perspective
(B). Some insights on the general civil law principle
known in Belgium and France will be provided
(B.I). Particular attention will be given to Art. 1382
of the respective civil codes (liability with fault),
which constitutes the essential legal basis for the
application of the prohibition of AoR. It will then
be examined how the general civil law principle is
applied in litigation (B.II). The paper will then turn
to the case law analysis in order to fully comprehend
how Belgian and French judges interpret the principle
of AoR in the framework of patent litigation (C). An
initial limitation must be claried regarding the
scope of this paper. Naturally, it is not only patent
holders who may abusively exercise their exclusive
rights. It also happens that (alleged) infringers abuse
their rights or even the judicial system. However, in
light of the initial statement that patent holders are
responsible for “abuses”, this paper focuses solely
on cases in which it has been argued (and upheld by
courts) that a patent holder has abused his or her
rights. After introducing the methodology applied
in order to compile the cases, a detailed assessment
of the cases will be presented. The analysis of the
2 There are no specialised patent courts or patent judges
in Belgium and France per se. However, patent litigation
is centralized. In Belgium, since 2015, all patent litigation
proceedings are brought before the District Court for Com-
mercial Matters of Brussels (Tribunal de commerce/Rechtbank
van koophandel). Before 2015, jurisdiction was shared be-
tween the district courts for commercial matters sitting at
the headquarters of one of the ve courts of appeal of the
country. This concerned the district courts of Brussels, Ant-
werp, Ghent, Liège, and Mons. In France, it is the Tribunal de
Grande Instance de Paris which exclusively deals with patent
cases. Before 2009, the district courts of Paris, Lyon, Mar-
seilles, Bordeaux, Rennes, Strasbourg, Limoges, Nancy and
Toulouse had jurisdiction over patent cases.
cases has been built upon the tripartite structure
of Art. 1382 of the Belgian and French civil codes,
i.e. the question of fault (C.I), harm (C.II), and causal
link (C.III). A section will also focus on the sanctions
decided by the courts (C.IV). The paper will then
conclude with the ndings on what constitutes an
“abusive scheme” from patent holders in the context
of Belgian and French patent litigation (D).
B. The Principle of the Prohibition
of Abuse of Rights
I. Abuse of Rights
1. Introduction
4
Traditionally, in civil law systems, all subjective
rights can be subjected to the prohibition of AoR
3
and
a common concept of abuse is generally accepted, i.e.
the exercise of a person’s rights in a manner which
is unreasonable, with consequent harm to another,
whether there was an intent or mere carelessness
or indifference as to resulting harm (or not).4
The AoR principle is commonly understood as an
instrument, which allows judges to nd a remedy
for an imbalanced situation and a tool for recovery
of distorted exercises of a right.
5
An abuse can be
considered as a crossing of internal limits, revealing
that despite adherence to formal and external limits
by a right holder (the exercise is not illegal), the
exercise of a right may be considered reprehensible
(the exercise is considered illegitimate).6 The
3 A. Lenaerts, “The relationship between the principles of
fraus omnia corrumpit and of the prohibition of abuse of
rights in the case law of the European Court of Justice”,
C.M.L. Rev., vol.25, pp. 1703-1718 (2011). T. Leonard, Conits
entre droits subjectifs, Larcier (2005). W. Van Gerven, Alge-
meen deel, Beginselen van Belgisch privaatrecht, I.R. Dillemans
& W. Van Gerven (ed.), Standaard, Antwerpen (1973).
4 A. Lenaerts, “The general principle of the prohibition
of abuse of rights: A critical position on its role in a cod-
ied European contract law”, E.R.P.L., Vol.6, pp. 1121-1154
(2010b).
5 V-L. Benabou, “L’abus de droit peut-il servir la cause de
l’intérêt général en droit de la propriété intellectuelle” in
L’intérêt général et l’accès à l’information en propriété intellectu-
elle, Université Libre de Bruxelles, colloque des 21 et 22 avril
2006, Bruylant (2008).
6 S. Stijns, “Abus, mais de quel(s) droit(s)?”, J.T., n 5533, pp.
33-44 (1990). For an overview of both European and nation-
al conceptions on abuse see; P-E. Moyse, “L’abus de droit:
L’anténorme – Partie I”, McGill L.J., Vol.51.4, p. 859 (2012a).
P-E. Moyse, “L’abus de droit: L’anténorme – Partie II”, McGill
L.J., Vol.58.1, p. 1 (2012b). A. Lenaerts, “The role of the gen-
eral principle of the prohibition of abuse of rights in a codi-
ed European contract law”, in I. Samoy (ed.) Evolutie van de
basisbeginselen van het contractenrecht, Metro n.50, Intersen-
tia (2010a). G. Palombella, “The Abuse of Rights and the
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