The Belgian Supreme Court construes the rules for descriptive seizures in a patent infringement case between Novartis and GSK…

In its decision of 24 March 2011, the Supreme Court ruled that a party that is involved in descriptive seizure proceedings is entitled at any stage of the proceedings to ask that confidential information which is not directly related to the alleged infringement of an intellectual property right is not disclosed to the plaintiff.

In 2009, Novartis initiated, with an ex parte request, descriptive seizure proceedings against GlaxoSmithKline Biologicals (GSK). The court designated an expert who had to examine whether GSK was infringing the patents that Novartis held with regard to the Hiberix vaccines. GSK opposed the designation of the expert, but the court confirmed the ex parte measures, provided, however, that the expert’s findings were kept confidential and that only a limited number of persons within Novartis were allowed to read his findings.

Later, GSK asked the court that the expert would exclude from his report several exhibits, because the exhibits contained confidential information. GSK’s request was granted, but, before the Supreme Court, Novartis argued that GSK’s request should have been dismissed.

Novartis stated that the court had already rendered a decision with regard to the confidentiality of certain documents in the opposition proceedings initiated by GSK against the descriptive seizure measures. According to Novartis, GSK could not initiate a second claim against the initial ex parte measures granted by the court.

The Supreme Court disagreed. In its decision of 24 March 2011, the Supreme Court ruled that a party that is involved in descriptive seizure proceedings is entitled at any stage of the proceedings to submit claims to the courts about the execution of the descriptive seizure measures. To avoid confidential information that is not directly related to the alleged patent infringement being disclosed to a competitor, the courts may at any time order the expert to remove such confidential information from his final report.

In Belgium, the ex parte descriptive seizure proceedings offer a very strong tool to the owners of intellectual property rights. The Supreme Court has now decided that this strong tool may not have the effect of preventing confidential information from being unlawfully disclosed. The expert designated by the court in descriptive seizure proceedings must always strike the right balance between the protection of the intellectual property rights of the plaintiff and the protection of the confidential information of the defendant.