I. Background

1. By letter dated 8 December 2017, the Belgian Intellectual Property Office (OPRI) informed the European Patent Office (EPO) of changes to Belgian patent legislation. As from 1 April 2018, the OPRI will cease to act as a receiving Office under the PCT and as a rule no longer accept European patent applications under Article 75(1)(b) EPC. As a consequence, the filing of European patent applications and international applications with the OPRI will no longer be possible, with the exception of applications which are subject to compulsory filing with the OPRI for national defence or security reasons, as explained below.

2. In the same letter, the Belgian Federal Public Service of Economy, SMEs, Self-Employed and Energy, on behalf of Belgium, asked the EPO whether it would agree, in accordance with Rule 19.1(b) PCT, to act for all purposes instead of the OPRI as receiving Office under the PCT for applicants with Belgian nationality or with their residence or their principal place of business in Belgium, for all international applications filed on or after 1 April 2018. By letter dated 22 December 2017, the EPO accepted Belgium's request.

II. Filing of European patent applications

A. Changes to the existing filing options

3. The current Article XI.82, § 1, of the Belgian Code of Economic Law gives an applicant the choice to file a European patent application either with the EPO or with the OPRI in accordance with Article 75(1)(a) and (b) EPC. As an exception to this provision, and in accordance with Article XI.82, § 2, of the Belgian Code of Economic Law and Article 75(2)(a) EPC, any European patent application where the applicant has Belgian nationality or has its residence or its principal place of business in Belgium, and which could be of interest to Belgian defence or security, has to be filed direct with the OPRI. It is the applicant's responsibility to determine whether its application could be of interest to Belgian defence or security and, if so, to file its application with the OPRI.

4. As of 1 April 2018, Article XI.82, § 1, of the Belgian Code of Economic Law will be amended and applicants will as a rule no longer be able to file European patent applications with the OPRI. From then on, all European patent applications will have to be filed direct with the EPO, with the exception of those which are subject to compulsory filing with the OPRI for national defence or security reasons, as detailed below.

B. Compulsory filing with the OPRI for Belgian defence or security reasons

5. The existing filing exception with regard to Belgian defence and security will remain unchanged. Any European patent application where the applicant has Belgian nationality or has its residence or its principal place of business in Belgium, and which could be of interest to Belgian defence or security, will still be subject to compulsory filing with the OPRI in accordance with Article XI.82, § 2, of the Belgian Code of Economic Law and Article 75(2)(a) EPC.

6. After having received such a European patent application, the OPRI will screen it to determine whether it is of interest to Belgian defence or security, and:

• where it is, the OPRI will not forward it to the EPO, in accordance with Article 77(2) EPC;
• where it is not, the OPRI will forward it to the EPO, in accordance with Rule 37(1) EPC. The date on which the OPRI receives the application will be acknowledged as the date of receipt by the EPO (Article 75(1)(b) and Rule 35(4) EPC).

III. Filing of international applications

A. Changes to the existing filing options

7. The current Article XI.91, § 1, of the Belgian Code of Economic Law gives an applicant with Belgian nationality or with its residence or its principal place of business in Belgium the choice to file an international application with either the EPO or the OPRI. In application of Rule 19.1(a)(iii) PCT, such an applicant also has the choice to file an international application with the International Bureau of WIPO. As an exception to these provisions, and in accordance with Article XI.91, § 2, of the Belgian Code of Economic Law and Article 27(8) PCT as well as Articles 151 and 75(2)(a) EPC, any international application where the applicant has Belgian nationality or has its residence or its principal place of business in Belgium, and which could be of interest to Belgian defence or security, has to be filed direct with the OPRI. It is the applicant's responsibility to determine whether its application could be of interest to Belgian defence or security and, if so, to file its application with the OPRI.

8. As of 1 April 2018, Article XI.91, § 1, of the Belgian Code of Economic Law will be amended and the OPRI will cease to act as a receiving Office under the PCT. Hence, from then on, only the EPO and the International Bureau of WIPO will act as receiving Offices under the PCT for applicants with Belgian nationality or with their residence or their principal place of business in Belgium, who will no longer be permitted to file an international application with the OPRI, with the exception of those which are subject to compulsory filing with the OPRI for national defence or security reasons, as detailed below.

9. The EPO as receiving Office only accepts international applications filed in English, French or German (Rule 157(2) EPC). Therefore, an applicant with Belgian nationality or with its residence or its principal place of business in Belgium wishing to file an international application in Dutch is advised to file it direct with the International Bureau of WIPO under Rule 19.1(a)(iii) PCT. If an international application is nonetheless filed in Dutch with the EPO, the EPO will promptly transmit it to the International Bureau of WIPO under Rule 19.4(b) PCT and it will be considered to have been received by the EPO on behalf of the International Bureau of WIPO as receiving Office under Rule 19.1(a)(iii) PCT in accordance with Rule 19.4(a) PCT.

B. Compulsory filing with the OPRI for Belgian defence or security reasons

10. The existing filing exception with regard to Belgian defence and security will remain unchanged. Any international application where the applicant has Belgian nationality or has its residence or its principal place of business in Belgium, and which could be of interest to Belgian defence or security, will still be subject to compulsory filing with the OPRI in accordance with Article XI.91, § 2, of the Belgian Code of Economic Law and Article 27(8) PCT as well as Articles 151 and 75(2)(a) EPC.

11. Since the OPRI will have ceased to act as a receiving Office (see paragraph 2), after having received such an international application, it will screen it to determine whether it is of interest to Belgian defence or security, and:

• where it is, the OPRI will not forward it to the EPO, in accordance with Article 27(8) PCT and Articles 151 and 75(2)(a) EPC;
• where it is not, the OPRI will forward it to the EPO as receiving Office, in accordance with Rule 157(3) EPC. The date on which the OPRI receives the international application on behalf of the EPO will be acknowledged as the date of receipt by the EPO.

12. An international application filed in Dutch which is forwarded by the OPRI to the EPO after the above-mentioned screening will be promptly transmitted by the EPO to the International Bureau of WIPO under Rule 19.4(b) PCT and considered to have been received by the EPO on behalf of the International Bureau of WIPO as receiving Office under Rule 19.1(a)(iii) PCT in accordance with Rule 19.4(a) PCT.