Sweden: Patent Litigation

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding patent litigation law in Sweden.

This Q&A is part of the global guide to Patent Litigation.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/patent-litigation/

  1. What is the forum for the conduct of patent litigation?

    The Patent and Market Court at first instance, and the Patent and Market Court of Appeal at second instance, have exclusive jurisdiction. The Patent and Market Court of Appeal has discretion to allow further appeal to the Supreme Court (subject to certiorari being granted).

    The panel of judges consist of both legal and technical judges, i.e. judges with suitable scientific qualifications.

  2. What is the typical timeline and form of first instance patent litigation proceedings?

    The typical timeline is 12 to 24 months in the first instance, depending on whether validity is an issue. Infringement and invalidity are formally separate cases but are normally joined. Claim construction is considered as an integral part of invalidity and infringement cases respectively. Damages are generally not bifurcated from the issue of liability but the plaintiff may choose to just seek declaratory relief of liability.

    The proceedings consist of a preparatory, mostly written part, concluded by a full hearing where the case is argued and the evidence, including witness and expert testimony, is presented.

  3. Can interim and final decisions in patent cases be appealed?

    Final and interim decision can be appealed. Leave to appeal is required from the Patent and Market Court of Appeal. The Patent and Market Court of Appeal has discretion to allow appeal of its judgment to the Supreme Court, which then decides whether to hear the appeal.

    The timeframe before the Patent and Market Court of Appeal is normally 12-18 months.

    A final decision or judgment will not become final and fully enforceable during appeal, unless specifically provided for in the decision/judgment itself. However, non-final decisions concerning interlocutory relief (e.g. interlocutory injunctions) are enforceable immediately but may be inhibited upon request by the appeal court.

  4. Which acts constitute direct patent infringement?

    Direct patent infringement occurs when anyone:

    - Manufactures, offers, places on the market, or uses a product protected by a patent or a product manufactured by protected process patent, or imports or possesses such a product for any such use,

    - uses a process which is protected by the patent or, where he or she knows, or ought to know, that the process may not be used without the consent of the owner, offers the process for use in Sweden.

  5. Do the concepts of indirect patent infringement or contributory infringement exist? If, so what are the elements of such forms of infringement?

    Yes, a patentee can prevent third parties from exploiting the invention by offering or supplying means to use the invention, if the patent is exploited in Sweden; these relate to an essential element of the invention; the person offering or supplying the means knows, or it is obvious, that these means are suited and intended for use in carrying out the inventions. If the means are staple goods, the supplier must also have sought to influence the recipient to undertake the infringing act.

  6. How is the scope of protection of patent claims construed?

    The scope of protection is defined by the claims. Terms in patents are construed in accordance with their ordinary meaning in the art, unless the patent defines the term in a different manner and the description may be taken into consideration. Construction is done in light of the patent’s contribution to the state of the art.

    All elements of a patent claim must be satisfied for infringement but in narrowly defined circumstances a claim can extend to equivalents.

    Statements from the prosecution history may be relied on in the construction where the claims or description is unclear, but only to limit the scope of protection.

  7. What are the key defences to patent infringement?

    Non-infringement and invalidity. If invalidity is relied upon, a separate action for invalidity must be filed at the same court by the alleged infringer.

  8. What are the key grounds of patent invalidity?

    Lack of novelty and/or inventive step; the invention not being enabled by the disclosure; added subject-matter; expansion of the scope of the patent after grant; and, the patent has been granted to someone not entitled to the invention. In the latter case the action must be filed by the person that actually is entitled to the patent.

    Lack of clarity is not in itself a ground for invalidity but may form part of a lack of enablement ground (and unclarities may limit the scope of protection).

  9. How is prior art considered in the context of an invalidity action?

    Prior art is anything public before the priority date. An unpublished patent application (in Sweden or at the European Patent Office, EPO) may be considered as prior art for novelty purposes from the applications’ priority date, given that it is subsequently published.

    Prior art citations cannot be combined for novelty. Combinations are possible for inventive step.

  10. Can a patentee seek to amend a patent that is in the midst of patent litigation?

    A patent can be amended by the Swedish Patent Office unless opposition or invalidity proceedings are pending against that patent. The courts have the power to amend claims, if this is requested in invalidity proceedings.

  11. Is some form of patent term extension available?

    Supplementary protection certificates (“SPC”) in accordance with EU regulations for medicinal products and plant protection products are available and extends the patent by up to five years and, with regard to medicinal products, another six months if the medicinal product has been tested to be suitable for children.

    The SPC can be challenged on the same basis as the basic patent which the SPC is based on. In addition, an action can also be based on that any of the requirements to obtain a SPC are not fulfilled. The most common grounds for challenge are that the basic patent was invalid or the marketing authorisation relied on was not the first.

  12. How are technical matters considered in patent litigation proceedings?

    Expert witnesses invoked by parties are permitted to testify. In such cases, a written statement must also be submitted. While these experts to some extent will testify to the benefit of the party which they are invoked by, they testify under oath and can thus not be partial.
    Court appointed experts exist, however these are in practice never used in patent cases.

  13. Is some form of discovery/disclosure and/or court-mandated evidence seizure/protection (e.g. saisie-contrefaçon) available, either before the commencement of or during patent litigation proceedings?

    A party, or anyone in possession of a specific document which can be important as evidence, can be ordered to produce it. The duty does not apply to personal messages between a party and his relatives, notes or personal writings. An order against documents containing trade secrets may only be granted if there is exceptional reason.

    If a patentee or licensee can show probable cause for patent infringement and it is proportionate and necessary, the court may order the opposing party, under penalty of a fine, to provide information about the origin and distribution network of the infringing products.

    If a patentee or licensee has shown reasonable cause, before or after the commencements of the proceedings, to assume that someone has infringed a patent or participated in the infringement, the court may grant an order for infringement investigation carried out by a search of the alleged infringer’s premises. The order is intended to secure evidence of the infringement.

    The claimant must, as a main rule provide security for the loss that may occur from any of the above orders, except document production.

  14. Are there procedures available which would assist a patentee to determine infringement of a process patent?

    An infringement investigation order may be sought and there are cases where the burden of proof has been transferred on the infringer after the patentee had made it probable that a product has been manufactured using a protected process.

    If a document describing the process exists, it would be possible for the court to order the alleged infringer to produce that document, but it will often be privileged by virtue of the trade secrets exception, or to order an infringement investigation.

  15. Are there established mechanisms to protect confidential information required to be disclosed/exchanged in the course of patent litigation (e.g. confidentiality clubs)?

    As a main rule, everything submitted to the court becomes public and can be obtained by third parties. Trade secrets submitted to the court may be kept confidential there but will be disclosed to the other party and its counsel. There is a liability in damages for the use or disclosure of trade secrets obtained in court proceedings and the court has the power to order restrictions relating to the documents but cannot prevent the other party from learning the contents of them.

  16. Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system?

    Yes, within nine months from the date the grant of a patent was published in the Swedish Patent Gazette, anyone can oppose the patent claiming that the basic requirements are not met for granting the patent (novelty, inventive step, enablement, added matter etc.). Patents for Sweden granted by the EPO are open for opposition based on the rules of the EPC.

    Opposition proceedings before the Patent Office can occur concurrently with validity proceedings before court. The Swedish courts are reluctant to stay patent proceedings pending opposition (national or at the EPO). In practice, the court appears to stay the proceedings only if both parties agree to a stay.

  17. To what extent are decisions from other fora/jurisdictions relevant or influential, and if so, are there any particularly influential fora/jurisdictions?

    Swedish courts shall consider EPO practise when applying Swedish patent law. Where no precedent exists for an issue, decisions from other jurisdictions may be considered, particularly if there is case-law to the same effect in several other EPC jurisdictions. The exact impact of foreign decisions is difficult to assess since the Swedish courts rarely discuss decisions from other jurisdictions in the reasons given in the judgment.

  18. How does a court determine whether it has jurisdiction to hear a patent action?

    The patent and market courts have exclusive jurisdiction regarding Swedish patents (granted by the national Patent Office or by the EPO and validated here). The jurisdiction does not extend to validity of foreign patents. In cross-border infringement proceedings the Swedish courts are bound by EU law instruments on jurisdiction. Anti-suit injunctions are not a remedy available under Swedish law.

  19. What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases?

  20. What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?

    There are generally no formalities which need to be observed before proceedings are brought. There is no statutory requirement that the defendant has been requested to cease infringement before proceedings are brought. However, legal counsel of the Swedish Bar can normally not assist in the bringing of proceedings unless the defendant has been requested to cease and desist. Not sending such notice may also have consequences insofar costs for the proceedings are concerned.

    Damages cannot be claimed for infringements which occurred more than five years prior to filing of the suit but can this notwithstanding always be sought within one year of patent grant.

  21. Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?

    An action may be brought by the patentee and licensees, both exclusive and non-exclusive. A licensee must inform the patentee of its intention to bring an action.

  22. Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?

    Anyone for whom the patent is detrimental has standing to bring an invalidity action. When an invalidity action is brought, the plaintiff must report this to the Patent Authority and notify all registered licensees and pledgees.

  23. Are interim injunctions available in patent litigation proceedings?

    Interim injunctions are available as part of a merits proceedings and are granted upon a finding of probable cause for the infringement action, if it is reasonably held that continued infringement will be prejudicial to the patent rights. There is also a proportionality requirement, barring the courts from granting interim injunctions where this would be disproportionate.

    The claimant must also provide sufficient security to protect the defendant from any damage it may suffer from the interim injunction if the decision on the merits overturns the finding of infringement, for which the plaintiff will be liable if it loses on the merits (liability is strict and is not limited to the amount of the security if it proves insufficient).

    Interim injunctions may be granted ex parte if it is assumed that communication with the defendant would be prejudicial to the plaintiff.

    However, ex parte injunctions are very unusual in Sweden, normally limited to obvious infringement or where a short delay would cause irreparable harm.

    An interim injunction will normally be granted between one and six months after having been requested.

  24. What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered?

    The remedies are injunctive relief against further infringement, reasonable compensation for the use of the invention, damages for additional loss in cases of negligent or wilful infringement, seizure and destruction of infringing products, other measures to prevent further infringements (recalling products from the market etc.) and compensation for costs for publication of the judgement on the infringement. The typical remedies are injunctions and damages.

  25. On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages?

    For non-negligent infringements, the infringer shall pay reasonable compensation for the use of the invention (hypothetical license fee) if and to the extent equitable. If the infringement was conducted intentionally or by negligence, the claimant is entitled to compensation for additional losses, normally loss of profit on sales of the patentee’s products or services.

    The patentee or licensee shall be put in the same position as if no infringement had taken place but is not entitled to any non-financial damages. However, in deciding the amount of damages the court may consider the revenue which the infringing party has made, damage on the invention’s reputation, damage to any moral rights of the inventor and the patentee’s interest in not having the patent infringed. Punitive or exemplary damages are not available.

  26. How readily are final injunctions granted in patent litigation proceedings?

    The Patent Act provides final injunctions as a remedy at the discretion of the court (it “may” grant such injunction). However, in practice final injunctions are essentially always granted on a finding of infringement. Public interest factors can be considered by the possibility to grant a mandatory license but are currently not an issue in deciding whether to grant an injunction. It should also be noted that intentional or grossly negligent patent infringement is penalized in Sweden so even absent a final injunction continued use of the invention would be highly problematic.

  27. Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief?

    It is possible to obtain a declaratory judgement of infringement or non-infringement in respect of a certain patent in relation to a specific product or service.

    A plaintiff may also seek a declaration of liability for past patent infringement against an infringer (i.e. also including the aspect of financial liability).

    ‘Arrow’ declarations are not available in Sweden.

  28. What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?

    First instance: Usually between EUR 300,000 and EUR 600,000 (infringement or invalidity) but the costs varies substantially based on the complexity of each case.

    Second instance: Usually two thirds of the costs at first instance.

    The costs before the Supreme Court is usually lower than before the lower courts.

  29. Can the successful party to a patent litigation action recover its costs?

    The main rule is that the losing party must pay the winning party’s full reasonable litigation costs. The main factors considered regarding reasonableness are the value of the subject matter of the proceedings, the scope of the proceedings and if the costs have been reasonably motivated in order to safeguard the party’s interests. If the costs are disputed by the losing party, the Courts may award a lower figure but it is generally recognised that patent disputes are costly and reductions are moderate.

    The winning party can recover costs for legal counsel, costs for evidence (e.g. experts) and the party’s own work.

    Plaintiffs from a jurisdiction outside the EEA with which Sweden does not have an agreement on mutual recognition and enforcement of judgments, must, if the defendant so requests, provide security for litigation costs in Swedish courts if the claim is directed towards a Swedish person or company, or like party from within the EEA region.

  30. What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?

    Life sciences have been the most litigated area and continues to be so.

  31. What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?

    We expect life sciences to continue being the most contentious area.

  32. Which aspects of patent litigation, either substantive or procedural, are most in need of reform in your jurisdiction?

    The obligation to post security at a specific amount prior to the Courts’ decision on interim injunctions is impractical, as a negative decision can be based on an insufficient guarantee. A system such as in other jurisdictions, where the decision is unenforceable until a court established guarantee has been provided would be more efficient.

  33. What are the biggest challenges and opportunities confronting the international patent system?

    The UPC system and whether it will come into force.

    Another area is computer-implemented inventions, where many low-quality patents seem to continue being granted, while genuinely beneficial developments are excluded from protection.