Patent Litigation 2024 Comparisons

In Sweden, inventions may be protected through a patent that gives the patentee an exclusive right to exploit the invention (a “negative right”).

Information concerning an invention that has not yet been patented, or which for some reason cannot enjoy patent protection, or is not appropriate for patent protection, can enjoy protection as a trade secret. In order to be protected as a trade secret, the information concerning the invention must fulfil certain criteria, including being kept secret and being deemed as important to the company’s business such that it would be detrimental to the company if the information were disclosed.

Protection for inventions and trade secrets is primarily governed by statute, although the details of protection conferred have been developed through case law.

Patents

The exclusive right for an invention arises through a patent being granted and thereby registered. A patent application can be made:

• nationally;
• throughout Europe, pursuant to the European Patent Convention (EPC); or
• internationally, pursuant to the Patent Cooperation Treaty (PCT).

For the two latter options, the application is made to the European Patent Office (EPO) or the World Intellectual Property Organization (WIPO) and, following an initial examination, the applicant may choose to designate Sweden as one protected country. The application is then transferred to the national regulatory authority for the necessary steps to move the application forward. The application authority in Sweden is the Swedish Intellectual Property Office (Patent- och registreringsverket, or PRV), for both national and foreign applications. Irrespective of the form in which the application is made, a granted patent results in a national Swedish patent registration.

As Sweden has also ratified the Agreement on a Unified Patent Court, an applicant may, after being granted a European Patent, choose to file a request for unitary effect at the EPO to obtain uniform protection in all participating member states (a “Unitary Patent”), including Sweden.

Swedish patent grant procedure

The national application procedure includes a formal and a technical examination; the same also applies to EPC applications, where the application is processed by the EPO.

The initial, formal examination is based upon whether the application is complete and whether the application fee has been paid. Any deficiencies in these respects must be rectified before the technical examination of the invention can be commenced. The subsequent technical examination is based upon whether the invention is patentable – ie, whether it is novel, may be subject to industrial application and involves an inventive step. Inventions whose commercial exploitation would violate public order or morality, such as inventions relating to the cloning of human beings, are not patentable. In this context it may be noted that Swedish authorities and courts follow the case law of the EPO.

The person responsible for the subsequent technical examination must be a qualified patent engineer who possesses knowledge of the area in question for the relevant invention. This part of the examination leads either to a technical order or to a final order. In a technical order, the applicant is given the opportunity to address any impediments towards the grant of the patent that the examiner has identified. If the PRV considers that a patent can be granted, a final order is issued whereby the applicant is given the opportunity to perform minor adjustments and review the application documents. After the applicant has paid a basic fee for publication, the PRV publishes its decision and the patent is thereby deemed to be granted.

A final decision concerning the rejection of the application is taken by the technical administrator in consultation with a separate and experienced patent expert. A decision to reject an application can be appealed to the Patent and Market Court.

Certain information in an application becomes public as a result of the filing of the application (eg, the applicant’s name). Other information becomes public within a period of 18 months from the date of filing or the priority date or, alternatively, in connection with the grant of the patent if this occurs earlier and the applicant has not requested that the PRV postpones the grant. If the application is rejected, withdrawn or discontinued prior to the expiry of the 18-month period, it is not published. Accordingly, the applicant can withdraw the application during the prosecution phase if they believe that the patent will not be granted and wish to keep the invention secret.

Trade Secrets

Information regarding an invention can also be protected as a trade secret. There is no registration procedure regarding trade secrets; instead, protection is acquired automatically, provided that certain criteria are fulfilled (see 1.1 Types of Intellectual Property Rights).

If an application meets the formal requirements, then the PRV will issue a technical, or final, notice within approximately seven months. The time limits for a final decision vary, depending on whether or not there is an obstacle to granting the patent. The final decision is generally rendered within two years from the filing date.

There is no requirement according to Swedish law concerning representation (authorised or other) for a patent applicant. However, statistics show that applications by professional patent attorneys are granted to a much higher extent.

The average application costs to grant a national patent are relatively low. The general application fee is SEK3,000 and the publication fee is SEK2,500. Additional fees may apply; eg, if the sought patent has more than ten patent claims. The average costs in addition to the formal fees amount to approximately SEK40,000.

A patent remains in force for a maximum term of 20 years from the application date. However, medicinal and plant protection products can be granted an extended term of protection for a maximum of five years. Also, medical products authorised for the treatment of children may be granted an additional protection term of six months (5.5 years in total).

If an invention is protected as a trade secret, it will remain protected for as long as it fulfils the requirements for being a trade secret.

Patents

The exclusive right of a patent is set forth in statutory law and allows the holder, inter alia, to stop others from using the protected invention commercially. The patentee may obtain an injunction, under penalty of a fine, against an infringer or anybody who participates in the infringement. In order to stop an ongoing infringement, it is also possible to apply for an interim injunction. A patentee can also apply for other measures, such as an order to provide information regarding the origin and distribution network of the infringing goods. The patentee is entitled to reasonable compensation for infringed use and damages caused by the infringement. The different options made available to the patentee in the Swedish Patents Act are based mainly on EU Directive 2004/48 on the enforcement of intellectual property rights (IPRED).

The scope of the exclusive right conferred by patent protection also includes the right to assign, license or pledge the patent.

There is no obligation to make use of the invention, although a court may, under certain circumstances, grant a compulsory licence to a third party if it is not used.

A patentee is obliged to pay annual fees in order to maintain the patent. The annual fee increases each year the patent is maintained, and ranges between SEK1,500 and SEK8,800. This obligation also applies during the application procedure.

There are no public information listings of certain products or processes which are protected by a patent in Sweden.

Trade Secrets

Trade secret protection arises automatically (see 1.1 Types of Intellectual Property Rights). Therefore, the owner of a trade secret is not obliged to pay any fees. Protection conferred by a trade secret includes protection against different kinds of misappropriation; eg, when secret information is obtained, exploited or disclosed without permission. Misappropriation of a trade secret may result in an injunction and entitle the holder of the trade secret to damages.

A patent can be maintained for a maximum term of 20 years from the application date. However, medicinal and plant protection products can be granted a Supplementary Protection Certificate (SPC) in accordance with EC Regulation (EC) No 469/2009 concerning the supplementary protection certificate for medicinal products (the “SPC Regulation”). According to the SPC Regulation, the term of protection is extended to a maximum of an additional five years. Medical products authorised for the treatment of children may be granted an additional protection term of six months (five and a half years in total).

The SPC application has to be filed within six months from the first marketing authorisation. The patentee has to pay an application fee as well as annual fees, and a decision to grant an SPC can be challenged by third parties. A decision to deny an application for an SPC can be appealed to the Patent and Market Court.

Third-party observations can be filed during the application procedure. An observation may refer to any aspect that affects the decision on whether a patent should be granted. The person who files an observation is not a party to the proceedings in a formal sense. However, the third party shall receive a notice if the patent application is granted.

A third party may also file a written opposition within nine months of a patent being granted. The opposition procedure includes an exchange of submissions between the patentee and the opponent, after which the PRV decides whether to revoke the patent, maintain it with an amended wording, or reject the opposition. The patent shall be revoked if:

• it was granted despite not being capable of industrial application, or it not being novel over the prior art, or it not meeting the requirement of inventive step;
• it includes something that was not evident from the application when it was filed; or
• it pertains to an invention that is not described with sufficient clarity to enable a person skilled in the art to carry it out with the guidance of the description.

The patent shall be maintained with an amended wording if the patentee modifies it during the opposition procedure in order to overcome the obstacles in question. The final decision in an opposition procedure may be appealed by the patentee or the objecting party to the Patent and Market Court within two months of the date of the decision.

Entitlement Claims

A third party may also file a claim for transfer of ownership based on the party’s title to an invention pending patent registration (a “better right” or “entitlement” claim). At the request of the claimant, the PRV may transfer the patent application or register the claimant as the inventor (or co-inventor). If it cannot be determined who has the better right to the invention, the PRV can order the claimant to initiate court proceedings. The PRV will disregard the claim unless the claimant initiates court proceedings within a certain time. A decision to reject a request for transfer may be appealed by the claimant.

An applicant who is not granted a patent may appeal the decision of the PRV. Likewise, final decisions in opposition proceedings may be appealed by the losing party. An appeal has to be made within two months of the date of the PRV’s decision. The appeal is to be lodged with the PRV, which may reconsider its decision unless there is a party opposing it. If the PRV stands by its decision, or if there is an opposing party, the appeal is submitted to the Patent and Market Court.

Failure to pay the annual fees of a patent application will lead to a dismissal of the application. This situation is unusual, since payment for the first three years is due in the third year. Where a patent has been granted, failure to pay the fees will lead to the annulment of the patent. A delay in payment can be remedied if an additional fee of 20% of the due amount is paid within six months. In exceptional cases, where a patentee has suffered a loss of rights due to failure of payment despite having observed all due care required, the patentee can complete payment within two months after annulment of the patent and file for a declaration that such payment has been made in due time.

Once a patent has been granted there are two possible ways for a patentee to amend its granted patent.

Patentee-Proposed Amendments

The patentee may file a request to the PRV consisting of proposed amendments to one or several of the granted patent claims and, where necessary, also amendments to the description. The proposed amendments must limit the scope of the patent compared to the granted rights. Furthermore, the description needs to be sufficiently clear in order to enable a person skilled in the art to utilise the invention. In addition, the amendments may not cover subject matter which did not appear in the application as filed (ie, added matter).

The PRV may not, without the consent of any applicable rights-holders, grant a request to amend an already granted patent if the patent is subject to seizure, charged with a lien, claimed through attachment or part of a pending dispute concerning the transfer of the patent. Furthermore, if the patent is subject to opposition proceedings before the EPO or part of an invalidity action, at the time the request for amending the patent is made, that request shall be denied.

Amendments During Revocation Proceedings

A patentee may also file one or several claims (auxiliary requests) to the court during the course of a revocation action in order to amend the patent claims. Such auxiliary requests also need to comply with the above-mentioned requirements for the procedure before the PRV. In addition, the court needs to assess whether the amended patent claims in the auxiliary requests contain the definitive information concerning what is sought to be protected by the patent. The court will, if the patent as granted is found to be invalid, assess whether such auxiliary requests presented by the patent holder mean that the patent, in its amended wording, should be deemed valid. Furthermore, if a patent holder seeks to amend its patent during ongoing revocation proceedings, such proposed amendments must fall within the scope of the revocation action requested by the plaintiff.

A patentee (or licensee) is entitled to apply for an injunction against imminent or ongoing infringements. An injunction can be obtained against the infringer, or against anybody who participates in the infringement, and the infringer can be subject to a fine. When it is considered urgent to stop an ongoing infringement, the patentee may request the court to issue an interim injunction.

Patent infringement can also be prosecuted as a criminal offence. However, in order for a prosecutor to initiate a criminal action, there must be a public interest in doing so. Furthermore, Swedish Customs can be contacted in order to seize suspected infringing goods.

Remedies

There are several remedies for third parties who wish to challenge the exclusive right of a patent. Third parties can:

• file a third-party observation during the application procedure with the PRV;
• file a request for the transfer of ownership based on title to the invention during the application procedure with the PRV;
• file an opposition with the PRV within a certain time from the patent being granted; or
• initiate court proceedings with an action for better right/entitlement to the invention, a revocation action, a declaratory action for non-infringement or an action for a compulsory licence.

Procedure

To initiate court actions, certain formal rules apply.

Only a person claiming entitlement to a patent can initiate an action for a transfer of ownership. Such an action can be brought within one year from the date on which such a person learned of the grant of the patent. If the patentee was acting in good faith regarding their right to the invention when the patent was granted, or when it was assigned to them, an action must be brought within three years from the date on which the patent was granted.

A third party may bring a revocation action if a patent is deemed to be detrimental to them.

A declaratory action for non-infringement requires the claimant to have a specific interest in a clarification of whether there has been an infringement. This may be the case, for example, if someone deems that they are prevented from using a method or product in their business because it is uncertain whether the exclusive right of the patent protects that method or product.

Any third party who may be presumed to have the ability to exploit the invention in an acceptable manner may seek a compulsory licence. The applicant must demonstrate that they have unsuccessfully attempted to obtain a licence on reasonable terms from the patent owner. Furthermore, a patentee may seek a compulsory licence to use an invention protected by another patent, where the use of the aforementioned patent is dependent on a patent owned by another party (in such cases the applicant must demonstrate that their invention constitutes significant technical progress of considerable economic interest in relation to the other invention). It is very rare for an application for a compulsory licence to be granted by Swedish courts.

In addition, anyone who was commercially exploiting an invention at the time a patent application covering the invention was filed may continue to use the invention notwithstanding the patent. However, such prior-use right requires that the exploitation did not entail clear abuse in relation to the applicant for the patent or any predecessor in title.

The Patent and Market Court is a specialist court which forms part of the Stockholm District Court, with exclusive jurisdiction in matters concerning Swedish patents, or the Swedish part of a European patent. It also hosts the seat of the Regional Nordic-Baltic division of the Unified Patent Court.

Appeals are made to the Patent and Market Court of Appeal within the Svea Court of Appeal in Stockholm. A leave to appeal is required in order for the court to try a case.

Judgments and decisions from the Patent and Market Court of Appeal are, as a rule, not appealable. However, the court may allow an appeal to the Supreme Court if a case involves an important issue of legal principle. However, such an appeal is still subject to a leave to appeal from the Supreme Court.

There are no specialised bodies or organisations for the resolution of disputes related to patents or trade secrets.

There are no statutory prerequisites to filing a lawsuit. However, the ethical rules of the Swedish Bar Association require its members (advokater) to give an opponent reasonable time to consider a claim before taking legal action. Furthermore, a party who initiates an unnecessary action is liable to pay the counterparty’s litigation costs, even if they win the case. Cease-and-desist letters are thus used in almost all cases, unless there are particular (urgent) reasons not to do so (eg, interim injunctions).

Anyone who wants to initiate court proceedings in relation to the validity of a patent must notify the PRV and inform everyone who has a licence or a pledge for the patent, according to the PRV’s register.

The parties in patent proceedings do not need to be represented by a lawyer. In theory, anyone may be appointed and act as a party’s representative, or a party may simply choose to represent themselves. However, due to the technical and complex nature of patent litigation, a legal counsel is almost always chosen to act as the party’s representative.

A patentee or a licensee may request an interim injunction

Conditions for Granting an Interim Injunction

An interim injunction may be granted if the following conditions are fulfilled;

• the applicant must show probable cause for an infringement of the patent (or imminent infringement);
• there must be reasons to believe that, by continuing to infringe or to contribute to the infringement, the defendant diminishes the value of the exclusive right in the patent;
• the measure must not entail inconvenience or injury to the defendant that is disproportionate to the reasons in favour of an interim injunction; and
• the applicant must provide sufficient security for any loss which the defendant might incur as a result of the injunction.

Where the claimant does not have the ability to lodge the security, the court may discharge them from the obligation. The security is normally a bank guarantee that may be used by the defendant.

The Presumption of Validity in Interim Procedures

The purpose of an interim injunction is to preserve the value of an exclusive right until the case has been conclusively adjudicated or the court has reversed the interim injunction decision (eg, following the inclusion of new evidence). If the defendant has filed a counterclaim for revocation, the court will also take into consideration whether it is probable that the patent will be invalidated. However, there is presumption that a granted patent is valid in interim procedures. This presumption may be overturned if the defendant can show that it is probable that the patent will be declared invalid. In this regard, the defendant would need to rely on either (i) new circumstances or new evidence not taken into account during the examination proceedings, or (ii) deficiencies or inaccuracies in the examining authority’s decision.

Recent case law from the Swedish Patent and Market Court of Appeal has confirmed the robustness of the validity presumption, emphasising that highly persuasive circumstances and evidence are requisite to overturn it. In these recent cases, which concerned an assessment of the validity of a patent within PI proceedings, the court found after a thorough assessment of the evidence at hand that it was likely that the patent was invalid and thus denied the PI. These cases show that the presumption of validity is still strong in Sweden, but also that there are ways for the defendant to rebut this presumption. However, it is important to remember that the validity presumption will be assessed on a case-by-case basis considering all evidence at hand. It may also be noted that it has been established in case law that the validity presumption is not necessarily affected by the fact that the relevant patent has been held invalid in interim injunction proceedings in other jurisdictions.

Procedure for Granting an Interim Injunction

Interim injunctions are normally decided following written correspondence between the parties without any oral hearing. It is very unusual to make use of the possibility of holding an interim oral hearing.

An injunction may be issued without notifying the defendant before the decision is rendered if a delay would entail a risk of loss (an ex parte decision). Swedish courts are, in general, reluctant to issue such injunctions. It would require extraordinary circumstances in patent cases.

How long it takes before a preliminary injunction may be granted varies, depending on the complexity of the case. In normal cases, one can expect to have a decision within three to six months.

There are no particular protective measures, such as protective briefs, for a potential opponent. However, in order to challenge a claimant’s request for an interim injunction, the defendant may, apart from arguing non-infringement, argue that the security provided by the claimant contains deficiencies or ambiguities (eg, regarding the amount or the wording of a bank guarantee or the authority on which it is based).

A potential opponent may file a declaratory action for non-infringement, or commence invalidity proceedings.

The Swedish Patents Act contains several special limitation provisions.

The right to damages in infringement proceedings is limited to damages incurred during the five years preceding the date on which an action is brought.

An action regarding damages pertaining to the application period up until the grant of a patent must be brought no later than one year after the expiry of term for opposition or, where an opposition has been brought, no later than one year after a ruling by the patent authority that the patent shall be maintained.

An invalidity action that is based on the fact that a patent has been granted to someone who is not entitled to the patent must be brought within one year from the date on which the party claiming to have such entitlement learned of the grant of the patent. If the patentee was acting in good faith regarding their right to the invention when the patent was granted, or when it was assigned to them, an action must be brought within three years after the patent was granted.

The same limitation provision applies to an action for transfer of ownership based on entitlement to an invention. It may be noted that the one-year period applies regardless of whether or not the patentee was acting in bad faith.

There is no special limitation provision in the Swedish Patents Act governing actions for permanent or interim injunctions. The court may grant an injunction even if the infringer has ceased the infringing activity. As regards interim injunctions, the granting thereof requires the claimant to show that there is a risk that continuation of the infringing act diminishes the value of the exclusive right granted by the patent. As such, any action where an interim injunction is requested, would need to be filed within a relatively short time frame from the claimant’s discovery of the infringing act (ie, probably within a few months).

There are several mechanisms by which a party can obtain information from an opposing party or a third party.

As a general option, a court may, upon request from any party, issue an order for the production of written documents according to general provisions in the Code of Judicial Procedure (1942:740). Anybody holding a written document that can be assumed to be of importance as evidence in a court case is obliged to produce it. Certain types of documents/information are privileged (eg, correspondence between an attorney and their client, or between relatives). An order for production of written documents can refer to documents in the other party’s possession, or in a third party’s possession.

Orders for the Production of Information

A patentee or licensee can also obtain an order for the production of information regarding the origin and distribution network of infringing goods or services. The court may order an infringer or certain third parties involved in an infringement to provide such information under penalty of a fine.

An order for the production of information may be issued under the condition that the applicant shows probable cause for patent infringement, and that the requested information can be deemed to facilitate the investigation of infringement. It may only be issued if the reasons for the measure outweigh the inconvenience or injury it entails for the person subject to the order or any other opposing interest.

Infringement Investigations

Furthermore, a patentee or licensee may obtain an order for an infringement investigation. Where it can reasonably be assumed that someone has committed, or contributed to, an infringement of a patent (or an attempted infringement or preparation to infringe), the court may order an investigation in order to search for objects or documents that can be assumed to be of importance for the inquiry into the infringement. The applicant must provide sufficient security for any damage that may be caused to the subject of the investigation.

A request for an infringement investigation can be made during infringement proceedings or prior to the initiation of such proceedings. The applicant must, however, initiate main proceedings within one month from the finalising of the investigation if a request is made separately.       

General Pleading Standards

The initial pleading standard is determined by the general provisions in the Code of Judicial Procedure (1942:740). The summons application must include:

• detailed contact information for the claimant and defendant;
• a precise request for relief;
• a detailed description of the circumstances relied upon; and
• an interim statement of evidence, including the evidentiary theme for each piece of evidence.

Patent Litigation Pleading Standards

In a general sense, the procedural rules are the same as in other civil law matters.

In practice, the summons application in main proceedings is normally quite extensive. The summons application shall include a preliminary schedule of evidence. However, it is possible to elaborate an argument and invoke new or different evidence during the entire preparatory stage. Negligence on one party’s side (ie, submitting new arguments and evidence late in the proceedings) may, however, be reflected in their liability to pay the opposing party’s legal costs.

The Swedish legal system does not permit representative or collective actions in patent cases.

The patentee is restricted from asserting their right against others in breach of Swedish competition law (eg, anti-competitive agreements and abuse of dominant position). Anti-competitive agreements are invalid and cannot be enforced.

The patentee or a licensee (exclusive or non-exclusive) may bring an infringement action.

It is not possible for third parties such as distributors or sales agencies to initiate an action for infringement.

Both legal entities and/or their representing individuals can be sued for patent infringement.

Direct Infringement

Statutory law provides that any of the following actions constitutes direct infringement.

• manufacturing, offering, placing on the market or using a product protected by the patent, or importing or possessing such a product for any of these purposes;
• using a process that is protected by the patent or knowing – or where it is clear from the circumstances – that the process cannot be used without the consent of the holder of the patent, and offering the process for use in Sweden; and
• offering, placing on the market, or using a product prepared by a process protected by the patent, or importing or possessing the product for any of these purposes.

Indirect Infringement

Indirect infringement, on the other hand, requires an act that contributes to a direct infringement. Indirect infringement occurs if:

• a third party, without the consent of the patentee, exploits the invention by offering or supplying a means to a person who is not entitled to exploit the invention to use it in Sweden;
• the means relate to an essential element of the invention; and
• the party offering or supplying the means knows, or it is obvious from the circumstances, that those means are suited and intended for use in conjunction with use of the invention.

A patentee is entitled to the same remedies in both cases: to request an injunction or a declaratory judgment against the infringer and to seek compensation for damages.

Direct infringement in a process patent may be established either by the infringer using the infringing process in Sweden or by the infringer offering the process for use in Sweden. The latter is dependent on the fact that the infringer knows – or that it is, in the light of the circumstances in the individual case, clear – that the process may not be used in Sweden without the consent of the patent holder.

Direct infringement in a process patent can also be established in cases where an allegedly infringing process is practised outside of Sweden, but where the product of that process is placed on the market, used, imported or possessed in Sweden. This is referred to as the indirect product protection (indirekt produktskydd).

The main rule as regards patent infringement is that the burden of proof lies with the patent holder, who must show infringement. According to case law, in certain cases concerning process patents the burden of proof of infringement may shift to the alleged infringer if the patent holder shows that it is probable that the alleged infringer uses a process which infringes the process patent.

The scope of patent protection is determined by the patent claims. When construing the patent claims, the description may serve as a guide.

Further principles of how to assess the scope of protection have been elaborated in case law. In general, Swedish courts follow the principles of Article 69 of the EPC and the Protocol on the Interpretation of Article 69. Equivalents are deemed to be protected under Swedish law provided that certain criteria – which have been developed in case law – are fulfilled.

According to established case law, the following criteria are decisive in the assessment of equivalents.

• the inventive idea must have been utilised completely;
• the subject matter of infringement must achieve the same technical result as the invention pursuant to the patent, despite differences in relation to the patent claims;
• the differences may be deemed to be obvious (närliggande) to the skilled person; and
• the solution leads to a result that is equal to the result obtained by the patent-protected solution.

If these criteria are fulfilled, there may be factors in the specific case that still exclude an application of the doctrine of equivalents. For example, if the invention is of a simple nature, if the difference between the wording of the patent claim and the supposed infringing object relates to a central feature of the patented invention crucial for its patentability, or if the equivalent feature has been subject to amendments during the prosecution. However, according to case law from the Patent and Market Court, amendments made during the prosecution not related to issues of novelty or inventive step, do not constitute a bar against applying the doctrine of equivalents.

An alleged infringer will try to exclude infringement of the patent enforced by stating that the act does not fall within the patent’s scope of protection. However, there are other defences that are commonly used depending on the specific situation. The defendant may:

• argue prior-use rights;
• apply for a compulsory licence;
• argue exhaustion of rights; or
• argue that the alleged infringing acts have been conducted for non-commercial purposes or for experimental purposes, or that the Bolar exemption applies.

In the special case of standard-essential patents, it may be argued that the patentee has failed to offer a licence on fair, reasonable and non-discriminatory (FRAND) terms before seeking injunctive relief against a potential infringer.

Experts appointed by parties have an important role in Swedish patent proceedings. They are frequently consulted and relied upon in order to provide the court with information concerning one or several technical issues. The court can also appoint an expert, although this right is rarely exercised.

The expert must provide a written expert opinion during the preparatory stages of the proceedings. The expert is also examined during the main hearing, and the opposing party has a right to cross-examine the expert.

There is no separate procedure for construing the terms of the patent’s claims. The patent claims are inevitably construed in the infringement or invalidity proceedings.

According to the Swedish Code of Judicial Procedure, a Swedish court may request a third-party opinion on matters of fact in relation to a case. However, in civil cases and even more so in patent cases, this is rarely exercised.

In the case of third-party opinions on legal matters, the general principle applicable to Swedish courts is the “jura novit curia” principle; ie, the court knows the law. However, if a question should be determined in accordance with foreign law, the court may demand that the party invoking such foreign law should provide evidence thereof.

It is possible to submit amicus briefs (or amicus curiae) to a court in order to try to influence the court in its decision; however, such third-party opinions are very rarely seen.

Pre-grant Opposition

Before the relevant authority grants a patent application, third parties have two possible options to oppose the registration of the patent. First, a third party may object to the granting of the patent. Secondly, a third party is able to claim entitlement to an invention. However, a claim for a transfer of ownership to an invention entails the burden of proof of such title lying with the party making the claim.

Post-grant Opposition and Subsequent Revocation Action

When a patent application is granted, third parties have the right to file a written opposition regarding the granting of the patent, within nine months. Such an opposition must include the grounds on which the third party bases the opposition, and it is tried by the PRV.

The decision taken by the PRV regarding an opposition filed by a third party may be appealed to the Patent and Market Court within two months from the decision.

Furthermore, there are no standing to sue requirements according to Swedish law in terms of initiating an opposition against a granted patent within nine months from the date a patent application has been granted.

A revocation action may also be initiated in court proceedings, either as an independent action or as a counteraction in an ongoing infringement action.

According to Swedish law, there are several grounds that may result in the revocation/cancellation of the patent granted: lack of novelty, lack of inventive step, insufficient disclosure, added subject matter and a third party having a better right to the invention.

As a main rule under Swedish law, it is only required that a granted patent is detrimental to a party in order for such party to have a standing to sue for revocation of the granted patent.

A patentee is able to request a patent limitation (eg, in order to limit the scope of the claims in a patent). This course of action may be taken to avoid revocation/cancellation proceedings. The PRV reviews a patent limitation request and, if it is rejected, the decision to reject may be appealed to the Patent and Market Court.

In court proceedings, the claimant may contend that only certain claims in a disputed patent should be declared invalid, and thus, if such a claim is successful, the result will be a partial revocation/cancellation of the registered patent.

In court proceedings regarding the invalidity of a patent, the patentee may propose that the patent claims in question shall be amended in order to maintain a limited scope of protection for the invention and prevent the allegedly invalid patent from being revoked or cancelled. The court then reviews whether the amended patent claims meet the requirements for patentability, and that the amendment de facto entails a limitation of the scope of the patent protection.

The Patent and Market Court has exclusive jurisdiction in cases regarding patent infringement and patent revocation/cancellation. Since the two separate cases are brought before the same court, the rule is that they are joined and heard together if it is beneficial for the conduct of the proceedings.

There are some special procedural provisions in the Patents Act (eg, regarding the competent court) and the Patent and Market Courts Act (eg, regarding the panel of judges and restrictions on the possibility of appeal). However, the procedure in patent proceedings is very similar to other civil court proceedings. Most procedural provisions are found in general provisions in either the Code of Judicial Procedure or the Court Matters Act.

The Patent and Market Court (the first instance court) aims to render a judgment within one year from the summons application.

The typical timeline in patent proceedings is that the statement of defence is ordered to be submitted within one month from the serving of the summons. Thereafter, the parties exchange a couple of submissions before the court schedules a case management meeting. After the case management meeting there will be some additional exchanges of submissions until a certain date set by the court where the parties must submit their respective final statement of evidence. The cases are normally declared closed (ie, the point after which no new evidence or circumstances shall be invoked) one to two months prior to the hearing.

As regards the Patent and Market Court of Appeal (second instance) the timeline is also approximately one year in normal cases; ie, one year from appeal to the main hearing in the appeal court.

In very rare situations, a patent case can be tried by Supreme Court of Sweden (see 2.3 Courts With Jurisdiction). The timeline for a case in the Supreme Court varies, but, as a main rule, it will be concluded by the court within a year.

The court proceedings consist of one main hearing in each respective instance. During the main hearing in the first instance both fact witnesses and experts are typically heard both by direct examination and cross-examination.

If a case is appealed, the main rule is that the examinations are reviewed by the appeal court by looking at video recordings of the examinations in the court of first instance.

All remedies requested in an action are, as a main rule, decided on in the same judgment. It is, however, quite common in patent infringement cases that the claimant seeks a declaratory judgment in relation to damages; ie, a request that the court shall declare that the defendant is liable for damages resulting from an infringement (without substantiating the amount of damages suffered as a result of the infringement). The amount of such damages will then need to be decided in subsequent proceeding.

In Sweden, the Patent and Market Court and the Patent and Market Court of Appeal are specialised IP and competition courts, so the appointed judges are specialised in intellectual property law, competition law and marketing law.

The composition of the court depends on the specific decision in question and in which instance the proceedings are pending. As a rule, both legal judges and technical judges determine decisions on the merits of a case.

The parties may not affect the court’s decision on whether a legal or technical judge should determine the case. However, the parties are informed about the choice of technical judge/judges, and can then make an objection that there is an apparent conflict of interest (the same applies to legal judges).

There are no formal mechanisms for settling a case. The parties may settle a case either without third-party involvement or with assistance from the court (through non-mandatory settlement conferences or court mediation). The case can be settled until the day of the judgment. It may be noted that the court is obliged to investigate the possibility of a settlement during the preparatory stage of the proceedings.

If the parties reach a settlement, they may choose either to have the settlement confirmed in a judgment by the court or, should they prefer to keep it confidential, to withdraw the case jointly.

The court decides whether a case should be stayed pending the resolution of other proceedings. Parallel proceedings, such as revocation proceedings and/or anti-suit injunctions, do not influence the current proceedings as a starting point. However, if it is clear that the validity of a patent will be determined in the near future, the court will likely stay ongoing infringement proceedings.

Injunctions

A patentee can file a request at the court for an injunction subject to a default fine, pursuant to the terms of which the alleged infringer is enjoined from continuing its allegedly infringing conduct. Such an injunction is available both as a permanent injunction and as an interim injunction. For an interim injunction to be granted, the patentee must show that there is probable cause for infringement. It must also be a reasonable assumption that the continuation of the infringing act will diminish the value of the exclusive right in the patent. Finally, the patentee must provide security for the potential loss of the alleged infringer.

Damages

If an infringer has not acted with intent or negligence, damages are limited to reasonable compensation for the use of the invention subject to the patent. If an infringer has acted with intent or negligence, the patentee also has the right to additional compensation for the additional loss resulting from the infringement. When determining the amount of additional compensation, the court will consider in particular:

• lost profits;
• profits realised by the party committing the infringement;
• damage to the reputation of the invention;
• non-pecuniary loss; and
• the patentee’s interest in preventing infringement from taking place.

Punitive and provisional damages are not available under Swedish law.

Other Remedies

The patentee may also request an alleged infringer to provide, under penalty of a fine, information regarding the origin and distribution network for the goods and services to which the infringement pertains and/or an infringement investigation (see 2.10 Mechanisms to Obtain Evidence and Information).

The court may also, at the request of the patentee, order that goods that infringe an exclusive right to a patent must be withdrawn from the market, destroyed, modified, etc, and that an infringer bear the costs pertaining to the patentee’s publication and spreading of information regarding the judgment on patent infringement.

The court has no discretion regarding the choice of remedies stated above.

Enforcement of the Remedies Available

If an infringing party does not comply with an award granted by the court, the patent holder may file a request with the Swedish Enforcement Authority to enforce the remedies awarded.

As regards injunctions subject to the penalty of a fine, if an infringer is non-compliant in regard to such injunction, the patent holder must bring an action to the court to enforce the injunction. If the injunction is found to have been breached, the court will order the infringer to pay the fine set out in the injunction to the Swedish state.

Generally, the prevailing party has the right to be reimbursed by the losing party for reasonable litigation costs and lawyers’ fees. However, this may vary, depending on whether the prevailing party has succeeded with all claims tried by the court.

The types of remedies for technical intellectual property rights do not differ from one another.

A request for an injunction will normally be granted if the claimant has proven patent infringement. Where the defendant appeals the judgment of the first instance court, in most cases effects pertaining to such a granted injunction will be suspended until the case is conclusively adjudicated. However, the court may order that an injunction shall enter into force instantly and last until the decision has become legally binding or the court decides otherwise. If the defendant appeals the decision to the appeal court, the defendant may request an inhibition of the injunction until the appeal court has assessed the case in its entirety.

The appellate procedure is, in principle, the same as in proceedings not related to intellectual property rights. However, the Patents Act and the Patent and Market Courts Act include special provisions regarding the appellate procedure in patent proceedings (see 2.3 Courts With Jurisdiction).

An appeal implies a full review of the facts of the case. The appellant can, however, limit the scope of review to certain questions. The parties can exchange submissions and, thereafter, an oral hearing takes place. Oral evidence invoked in the first-instance proceedings is, however, normally video-recorded, and the Patent and Market Court of Appeal will review the recordings instead of having the witnesses testify again. It should also be noted that new facts or evidence are not allowed in the appeal proceedings, except under certain circumstances.

The costs arising before a lawsuit are typically related to:

• warning letters;
• the gathering of evidence;
• research on technical and legal questions;
• drafting the summons application;
• arranging a bank guarantee when necessary; and
• efforts to settle the dispute.

Depending on the type of case and the value of the claim, the court fee for commencing proceedings is fixed at either SEK900 or SEK2,800.

The losing party is required to reimburse the prevailing party for their reasonable litigation costs. This applies to lawyers’ fees, court fees, costs for evidence, etc. The litigation costs can also be divided between the parties if both have prevailed in different matters. However, exemptions apply if a party has acted negligently or initiated an unnecessary trial.

Alternative dispute resolution is not normal practice when settling a patent case. However, licensing agreements and other contractual issues related to patents are often submitted to arbitration. Patent infringement disputes are sometimes submitted to arbitration, but the possibility of obtaining an interim injunction subject to a default fine at the Patent and Market Court is probably the reason this option is not used more often. It is not possible to submit an invalidity action with an in rem effect in an arbitration procedure. However, it is possible to submit an inter partes invalidity action in an arbitration procedure. It is also possible to use mediation, although this is rare.

There are no formal requirements or restrictions for assigning a Swedish patent or patent application.

There is no formal procedure for assigning a patent right. The patentee or assignee may request that the assignment is registered in the patent register administrated by the PRV. This procedure requires, inter alia, a written and signed request from the patentee or the assignee. In general, proof of the assignment is not required for the registration.

There are no formal requirements or restrictions to licensing a patent right. The patentee is free to license their right by way of an agreement. However, where the patentee has granted a licence, the licensee may assign their right to others only if an agreement has been made to that effect.

There is no formal procedure for licensing a patent right, and it is rare, although possible, for patent licences to be registered in the patent register.