The EU Biotech Directive (98/44/EC) has finally been transposed into Belgian law by the Act of April 28 2005, amending the Patent Act 1984. The new act came into force on May 23 2005.

For the most part, the act exactly transposes the provisions of the directive. However, certain parts of the act - including those covering the extended experimental use exception and new compulsory licensing in the interest of public health - exceed the directive's requirements.

It is not illegal for the Belgian legislature, when transposing an EU directive, to adopt measures which go beyond the provisions of the directive in question. In this particular case, the provisions on experimental use and compulsory licensing seem to have been the objects of a political agreement whereby the main provisions of the directive are transposed nearly word for word into Belgian law, but the practical effect of these provisions may be seriously diminished by the extension of these exceptions to the rights of the patent holder.

Authors: Christel Brion and Olivier Lemaire