Patent litigation in Sweden: overview

A Q&A guide to patent litigation in Sweden.

The Q&A gives a high level overview of patent disputes, including how patent infringement is assessed; the conditions for a declaratory judgment; invalidation proceedings; preliminary relief and enforcement options.

To compare answers across multiple jurisdictions visit the patent litigation Country Q&A tool.

This Q&A is part of the global guide to Patent Litigation. For a full list of jurisdictional Q&As visit www.practicallaw.com/patentlitigation-guide.

Contents

Sources of law

1. What are the principal sources of law and regulation relating to patents and patent litigation?

The main legislation relating to patents is the Patents Act (Patentlagen) (1967:837). In addition, the practice of the European Patent Office (EPO) has a considerable impact on court decisions. In the case RÅ 1990 ref 84, the Supreme Administrative Court stated that Sweden's accession to the European Patent Convention 1973 (EPC) has made it necessary to adopt the practice of the EPO in Swedish administrative court rulings, provided that this practice does not conflict with Swedish legislation. In another case regarding patent infringement, the Supreme Court held that the material provisions of the EPC and the case law of the EPO must be followed by the Swedish general courts in cases involving national patents (Comviq v Europolitan (NJA 2000 p. 497)). However, the procedural provisions of the EPC are not binding on Swedish courts.

General procedural rules for patent litigation are provided in the Code of Judicial Procedure (Rättegångsbalken) (1942:740). The Patents Act also contains certain procedural provisions regarding patent litigation.

Sweden is a party to and has ratified the Unified Patent Court Agreement.

In Sweden, international treaties must be implemented into national legislation in order to come into force. Therefore, in the case of conflict, statutes take precedence over international treaties. However, courts can apply any international treaties along with any Swedish legislation for the purposes of harmonisation. In practice, Swedish statutes are interpreted in the light of international treaties to the fullest extent possible.

 

Court system

2. In which courts/government bodies are patents enforced?

Patents are enforced in the following specialised courts:

  • The District Court of Stockholm at first instance.

  • The Svea Court of Appeal at second instance.

The Supreme Court is not specialised. The Swedish Patent Office and other government bodies do not have jurisdiction over patent litigation.

Sweden will establish a regional division of the Unified Patent Court together with Estonia, Latvia and Lithuania, which will be based in Stockholm.

The government has examined a proposal to introduce a new specialised court system, the Patent and Market Court system, for all intellectual property and marketing/unfair competition cases, including patent cases. A formal Bill was introduced in December 2015. If the Bill is passed by the Swedish Parliament, the new court system is planned to be introduced on 1 September 2016. For further details see Question 38.

 
3. Do the courts/government bodies deal with infringement and invalidity simultaneously or must invalidity actions be brought in separate proceedings?

A same court will deal with infringement and invalidity simultaneously. The cases are formally separate cases but are normally joined, unless there are particular reasons against this (section 61, third paragraph, Patents Act).

 
4. Who can represent parties before the court and/or government body?

There are no professional requirements that apply to persons representing partiers before the courts. However, a court can reject counsel who does not have the required skills or is otherwise considered unsuited. In practice, only legally educated persons appear as representatives. In most cases, these persons are also members of the Swedish bar (Advocates) (Advokater).

 
5. What is the language of the proceedings? Is there a choice of language?

Swedish is the only official language of proceedings. However, the courts can allow evidentiary documents in English (such as declarations by expert witnesses). The language of the proceedings before the regional division of the Unified Patent Court will be English.

 
6. To what extent are courts willing to consider, or are bound by, the opinions of other national or foreign courts, or other national or international bodies, that have handed down decisions in similar cases?

The Swedish courts are not bound by the opinions expressed by other courts, or any national or international bodies. Although parties often invoke judgments rendered in other jurisdictions in respect of the same issues or the same patents and these judgments may have some influence (if well-reasoned), Swedish courts do not normally comment on how foreign courts have dealt with similar issues.

 

Substantive law

7. How is patent infringement assessed?

The patentee bears the burden of proof to establish infringement.

According to case law, the Swedish courts can apply the doctrine of equivalents if the variant meets the following conditions:

  • The inventive idea has been used.

  • The problem underlying the solution is the same as for the patented invention.

  • The result of the solution is similar as for the patented invention.

  • The functional result is the same as for the patented invention.

In addition, the Swedish courts consider that the doctrine of equivalents does not apply in the following circumstances:

  • The invention was a simple construction solution.

  • The missing feature in the allegedly infringing device is a particularly important element of the invention.

  • The skilled person would not have considered replacing the missing feature with the feature used for the allegedly infringing device.

  • The scope of the patent claim covers prior art.

  • It is clear from the prosecution file that the disputed feature was introduced to limit the scope of the invention.

 
8. What defences are available to an alleged infringer?

The alleged infringer can:

  • Deny infringement.

  • Argue that the patent is invalid.

If invalidity is argued, the alleged infringer must file a claim for revocation of the patent with the same court.

 
9. On what grounds can a patent be invalidated?

A patent can be invalidated on the following grounds (section 52, first paragraph, Patents Act):

  • Lack of novelty and inventive step.

  • Insufficient disclosure of the invention.

  • Lack of support in the application as filed.

  • Expansion of the scope of the patent after grant.

The patent can also be invalidated if it has been granted to someone who was not entitled to the invention. An invalidity action based on this ground can only be brought by the person entitled to the invention.

 
10. Can a court only partially invalidate a patent or transform it into a utility model?

A patent can be partially invalidated by a court if the patentee's defence against invalidity is upheld and this results in a restriction of the patent claims.

Utility models are not available in Sweden. Therefore, a patent cannot be transformed into a utility model.

Partial invalidation has been available under case law for several decades. Following an amendment to the Patents Act in 2007, the scope of protection of a patent can be restricted by amending the claims if the following conditions are met (section 52, second paragraph, Patents Act):

  • The patentee requests the amendment.

  • The general requirements for obtaining a patent are met (that is, sufficient disclosure of the invention, support in the application as filed and no extension of the scope after grant).

  • When the claims are in English, the patent has provided a translation into Swedish of the amended wording.

 
11. Is it possible to amend patent claims during proceedings?

A patent can be amended by the Patent Office, but only if no opposition proceedings before the European Patent Office and no action for invalidation of the patent are pending. When an action for revocation of a patent has been filed at court, it is no longer possible to amend the patent claims administratively. When court proceedings are pending, only the court is competent to decide a matter concerning amendment of patent claims (section 40 a, Patents Act).

 
12. Are there any grounds on which an otherwise valid patent can be deemed unenforceable?

There are no grounds on which an otherwise valid patent can be deemed unenforceable under Swedish patent legislation. However, competition law can in certain circumstances affect the enforcement of patents (see for example, the judgment of the Court of Justice of the European Union in C-170/13 Huawei/ZTE concerning the availability of injunctive relief in connection with the enforcement of standard essential patents).

 

Parties to litigation

13. Who can sue for patent infringement?

Patent holder

The patent holder can sue for patent infringement.

Exclusive licensee

An exclusive licensee can sue for patent infringement. An exclusive licensee need not be registered to be eligible to sue.

Non-exclusive licensee

A non-exclusive licensee can sue for patent infringement. A licensee need not be registered to be eligible to sue.

Distributor

Distributors cannot sue for patent infringement.

Other

Other individuals cannot sue for patent infringement.

 
14. Under what conditions, if any, can an alleged infringer bring proceedings to obtain a declaratory judgment on non-infringement?

There are three requirements for bringing a lawsuit to obtain a declaratory judgment on non-infringement (section 63, second paragraph, Patents Act):

  • The lawsuit must be brought by a person that carries on a business or is planning to do so.

  • There is uncertainty regarding whether it is allowed to carry on business because of the patent.

  • This uncertainty is prejudicial to that person.

These conditions have been interpreted broadly and standing is rarely an issue in practice.

 
15. Who can be sued for patent infringement?

Anyone who infringes a patent can be sued (section 58, Patents Act). This applies to legal entities and/or their representatives. However, in practice, it is very rare that company directors are sued personally. Personal responsibility is mostly argued in cases involving small enterprises, where there are only one or a few owners who are also directors.

The exclusive rights of patent holders include protection against contributory infringement. This allows a patentee to prevent third parties from exploiting the invention by offering or supplying means for carrying out the invention to a person who is not entitled to exploit the invention, provided that the following conditions are met (section 3, second paragraph, Patents Act):

  • The patent is exploited in Sweden.

  • The means relate to an essential element of the invention.

  • The person offering or supplying the means knows, or it is obvious from the circumstances, that these means are suited and intended for use in carrying out the invention. If the means provided consist of staple goods, the supplier of the means must also have sought to induce infringing use.

 
16. Is it possible to add or remove parties during litigation?

Under the Code of Judicial Procedure, a third party can intervene in a case if the proceedings concern its rights (Chapter 14, section 9). In addition, two or more cases can be joined if they concern the same subject matter (Chapter 14, section 3, Code of Judicial Procedure).

A party can be replaced by another party if the subject matter of the litigation has been transferred from one person to another (Chapter 13, section 7, Code of Judicial Procedure). Rules concerning the requirement for approval from the opposing party and liability for legal costs apply differently depending on whether the transfer takes place on the claimant's or defendant's side.

If an action is withdrawn, the court will write off the action and order the claimant to compensate the defendant for its legal costs (Chapter 18, section 5, second paragraph, Code of Judicial Procedure).

 

Enforcement options

17. What options are open to a patent holder when seeking to enforce its rights in your jurisdiction?

Civil proceedings

When initiating civil proceedings, the usual course of action is to first send a cease and desist letter to the alleged infringer (see Question 18). If the letter does not have the intended effect, the claimant will initiate an infringement action in the general courts. For more information on the procedure before civil courts and available remedies see Questions 24 to 36.

Criminal proceedings

Criminal proceedings are available under Swedish law if the patent infringement was made either intentionally or with gross negligence. The public prosecutor can initiate an investigation of the infringement and institute criminal proceedings if both:

  • The patentee denounces the crime.

  • The initiation of criminal proceedings is in the public interest.

The patentee is normally responsible for initiating criminal proceedings, although these proceedings are very rare.

Border measures

Border measures are available in respect of patents under Regulation (EU) 608/2013 concerning customs enforcement of intellectual property rights. National rules concerning customs actions can be found in the Swedish Customs Act, Swedish Customs Ordinance and Customs Proclamation.

 
18. Is it compulsory to send a cease and desist letter to an alleged infringer before commencing patent proceedings?

It is not compulsory to send a cease and desist letter to an alleged infringer under Swedish law. However, the ethical rules of the Swedish Bar Association require its members to allow an opponent a reasonable period of time to consider a claim before taking legal action, unless a delay would be detrimental to the client.

In addition, if the claimant does not give prior notice to the alleged infringer, the claims may later be admitted by the defendant. In this case, the claimant could be considered to have initiated an unnecessary action, and may therefore have to pay the defendant's litigation costs.

Unjustified threats of infringement in the form of unjustified cease and desist letters are governed by the general rules in the Swedish Marketing Act. According to the case law of the Swedish Market Court, cease and desist letters must meet certain requirements (for example, accuracy and moderation). Possible sanctions for not meeting these requirements include injunctive relief and damages.

 
19. To what extent are courts willing to grant cross-border or extra-territorial injunctions (preliminary or permanent)?

The authors are not aware of any instance where cross-border or extra-territorial injunctions have been requested or granted by Swedish courts. However, it is conceivable that such injunctions will be granted if the defendant is domiciled in Sweden.

 
20. To what extent do courts recognise the blocking effect of "torpedo" actions abroad?

Swedish courts will refrain from exercising jurisdiction over actions that are already pending before another competent court, in accordance with Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007. However, the case law of the Court of Justice of the European Union, as well as national case law (for example, Italian and German case law), limit the effect of torpedo actions in the context of patent litigation (see GAT v Luk (C-4/03 and 2006/C 224/01 and Hoffmann La Roche v Primus (C-539/03 and 2006/C 224/02)).

 
21. To what extent are arbitration, and alternative dispute resolution (ADR) methods (such as mediation), available to resolve patent disputes?

Arbitration

The parties can agree to submit a patent infringement dispute to arbitration. An arbitration award can have effects in relation to damages. However, the issue of validity of a patent cannot be decided through arbitration, as this falls within the exclusive jurisdiction of the Stockholm District Court. The Patents Act contains certain rules on notice of invalidity actions and submission of court judgments concerning invalidity to the Patent Office, which have been invoked in legal doctrine in support of this position. However, the authors are not aware of any clear precedent in this respect.

ADR

Except for patent disputes relating to contracts (such as contracts concerning licences, research and development and so on), the use of ADR methods is fairly limited under Swedish law. The most common ADR methods available include mediation and negotiations between the parties to reach a settlement.

 

Competition and anti-trust

22. Can a patent holder bring proceedings claiming both patent infringement and unfair competition for the same set of facts?

It is possible to pursue a "two-track" approach, although not in the same action and normally not before the same court. Proceedings based on unfair competition are primarily dealt with by the Swedish Market Court. The Stockholm District Court hears patent cases in a special composition that only applies to patent actions. Therefore, the patent holder cannot bring proceedings claiming both patent infringement and unfair competition for the same set of facts in one single action.

Under the proposed new Patent and Market Court system (see Question 38), it will in theory be possible to bring one action based on both patent infringement and unfair competition. However, it will not be permissible to include both economic and technical experts in the panel of judges. Considering that technical experts are normally required in patent actions and economic experts in unfair competition cases, it appears unlikely that actions based on both grounds will be made under the new system.

 
23. To what extent can enforcement of a patent expose the patent holder to liability for an anti-trust violation?

There is no national case law regarding competition law issues in the context of patent litigation and patent infringement in Sweden. However, the European Commission and the Court of Justice of the European Union have issued several decisions of interest in this context relating to, for example:

  • Abuse of a dominant position in connection with obtaining extended patent protection through supplementary protection certificates.

  • Enforcement of standard essential patents.

  • Settlement agreements concerning "reverse payments" (pay-for-delay) in relation to generic competition in the pharmaceutical sector.

 

Procedure in civil courts

24. What is the format of patent infringement proceedings?

An action for patent infringement must be filed with the Stockholm District Court, which has exclusive jurisdiction in proceedings regarding patent validity and infringement. Decisions or judgments rendered by the Stockholm District Court in patent cases can be appealed to the Svea Court of Appeal, provided that leave to appeal is granted by the Court of Appeal. Decisions of the Court of Appeal can be appealed to the Supreme Court, if leave to appeal is granted. While it is common for the Court of Appeal to grant leave to appeal in patent cases, this is very unusual for the Supreme Court to do so.

Cases tried on the merits at first instance by the Stockholm District Court are normally decided by a panel of two legally qualified judges and two technical judges with experience of patent law. Before the Court of Appeal, cases are normally heard and decided by three legally qualified judges and two technical judges. Patent cases before the Supreme Court are decided by legally qualified judges only.

 
25. What are the rules and practice concerning evidence in patent infringement proceedings in your jurisdiction?

Documents

The most common form of evidence used in patent litigation cases is documentary evidence.

Witness evidence

Witness evidence is commonly used in patent litigation. The principle that witnesses must be heard in person before the court is central under Swedish procedural law. Witnesses are heard at trial and subject to cross-examination by the parties. Witnesses heard at first instance will normally not be re-examined in the Court of Appeal. Instead, the decision on appeal will be based on video recordings of the testimonials in the first instance. Written affidavits can be submitted if it impossible to hear the witness (for example, in preliminary injunction proceedings, as these are decided on documents alone).

Expert evidence

Experts are permitted under Swedish law and can be appointed both by the court and by the parties. In practice, court-appointed experts are rarely used whereas party- appointed experts are very common in patent litigation. An expert must provide a written expert opinion before trial stating the reasoning and circumstances on which his opinion is founded. The evidential value of a party-appointed expert depends on the:

  • Background and expertise of the individual, as documented to the court.

  • Statements and reasoning of the expert.

Experts are heard at trial and subject to cross-examination by the parties. Experts can be (and normally are) allowed to hear the testimony of other experts. Therefore, they can be asked to comment on these testimonies.

 
26. Is evidence obtained in criminal proceedings admissible in civil proceedings and vice versa?

Evidence obtained in criminal proceedings is admissible in civil proceedings (and vice versa), unless the court has restricted access to the file in a confidentiality order.

 
27. Is evidence obtained in civil proceedings admissible in other civil proceedings?

Evidence obtained in civil proceedings is admissible in other civil proceedings, unless the court has restricted access to the file in a confidentiality order.

 
28. To what extent is pre-trial disclosure permitted and what other mechanisms are available for obtaining evidence from an adverse party or third parties?

Pre-trial discovery

Pre-trial discovery is not available in Sweden.

Other mechanisms

Under the Code of Judicial Procedure, a party can obtain a court order for the production of specific documents or other items of property that have relevance as evidence. Witness examination is allowed to identify documents and property that can be relevant.

In addition, the Patents Act enables the court to issue an order for a search of the infringer's premises to search for evidence of infringement. The court can also issue a specific order for information against the infringer or third parties that have been involved in the infringement or have handled infringing goods. The order can cover information about:

  • Which parties are involved in the handling of infringing products.

  • The number of infringing products sold.

  • The prices of these products.

Requests for search and information orders can be submitted before the initiation of an infringement action. Orders for the production of documents and items of property can only be issued once proceedings are pending.

 
29. What level of proof is required for establishing infringement or invalidity?

The court must decide the case based on all the facts in the matter, in accordance with the principle of free evaluation of evidence. Generally, the court applies the balance of probability test. In principle, the patentee bears the primary burden of proof to establish infringement, and the party claiming invalidity of the patent bears the burden of proof in respect of invalidity.

Certain aspects of infringement and invalidity are subject to specific rules on burden of proof, as follows:

  • If the patent concerns a method for the production of a new substance, the alleged infringer has the primary burden of proof to show that the substance has been produced with an alternative, non-infringing method.

  • In invalidity proceedings, the burden of proof to show that the invention possesses the patented technical effect falls on the patentee if the claimant makes it probable that the invention lacks such effect.

  • If the invalidity action is based on lack of novelty due to prior public use of the invention, this use must be proved "up to the hilt", which is a stricter burden of proof.

 
30. How long do patent infringement proceedings typically last?

Usually, infringement or invalidity actions tried on the merits last about 18 to 24 months in the first instance and an additional 18 to 24 months on appeal.

Fast-track procedures

Fast-track procedures are not available in Sweden. However, courts have a general obligation to handle all cases in a time-efficient manner.

Timetable

It is possible for the parties to agree on a timetable of the proceedings. However, the timetable is not binding, as the parties and their counsel are not sanctioned if they cannot comply with the deadlines set out in the timetable.

Delay

A defendant seeking to delay the proceedings can try to obtain extensions of individual deadlines by raising procedural issues regarding the handling of the case which require decisions of the court, some of which can be appealed separately. Generally, a claimant wishing to counter these delaying tactics must:

  • Be well prepared.

  • Submit all arguments and evidence at an early stage.

  • Object to the granting of extensions.

  • Be flexible in the handling of procedural issues raised by the defendant.

A case is rarely stayed unless both parties agree to a stay of the proceedings. For example, unless both parties agree, pending opposition proceedings are normally not a reason to stay infringement proceedings before the general courts. There is an exception if a final decision in opposition proceedings is expected in the very near future.

 

Preliminary relief

31. Is preliminary relief available, and if so what measures are available and under what conditions?

Preliminary relief is available under Swedish law.

Search and preservation orders

To secure evidence of patent infringement, the court can order that an investigation is to be carried out at an alleged infringer's premises in order to search for objects or documents that can be significant for an infringement investigation. A patentee or licensee can submit a request for an infringement investigation before the initiation of an infringement action or during infringement proceedings on the merits.

The court can also issue a specific order for information against the infringer or third parties that have been involved in the infringement or have handled infringing goods. The order can cover information about which parties are involved in the handling of infringing products, the number of infringing products sold and the prices of these products. A patentee or licensee can submit requests for information orders before the initiation of an infringement action or during infringement proceedings on the merits.

Injunctions

The court can issue a preliminary injunction under the penalty of a fine if the claimant shows:

  • Probable cause that the defendant has infringed the patent.

  • That it can be reasonably feared that the value of the exclusive right to the patent will be diminished by the defendant's continued infringement.

The provisions on preliminary injunctions have been interpreted as requiring the court to apply a rule of proportionality (balance of convenience).

It is highly unusual for Swedish courts to grant ex parte (without notice) preliminary injunctions. Case law has established that ex parte injunctions can only be granted where even a short delay would cause the claimant irreparable harm of considerable proportion. Normally, ex parte injunctions are only granted in counterfeiting cases or in cases where the infringement is obvious and it is extremely urgent to stop this infringement.

A preliminary injunction can only be issued if the claimant deposits security with the court, normally in the form of a bank guarantee, to cover compensation for the damage that may be caused to the defendant as a result of the injunction.

An action for a preliminary injunction is part of the main proceedings on the merits.

 
32. Can a protective writ be filed at the court at which an ex parte application may be filed against that defendant?

It is not possible to file a protective writ at the Swedish courts. For a potential defendant, it can be advantageous to have initiated a revocation action at the time of a request for a preliminary injunction in order to have a developed invalidity defence in place and reduce the risk of a preliminary injunction being granted.

 
33. What is the format/procedure of preliminary injunction proceedings?

General

Preliminary injunction proceedings are part of the main proceedings and are conducted in writing. The decision is taken on documents alone.

Level of proof

The claimant must show probable cause that an act constitutes infringement. The same level of proof applies to an invalidity defence, meaning that the defendant must demonstrate probable cause that the patent must be revoked. In preliminary proceedings, there is a presumption of validity attached to granted patents. For example, this means that a successful defence of invalidity requires a reference to "new" prior art in addition to that considered by the patent office at the time of grant or during subsequent opposition proceedings.

Evidence

Written evidence is used to a large extent in preliminary injunction proceedings, including written expert opinions and other affidavits. Generally, witnesses are not examined and the court does not appoint experts.

Patent validity

The validity of the patent in issue is often challenged in Swedish preliminary injunction proceedings. This means that the court must not only make a preliminary assessment of the infringement, but must also evaluate the likelihood of the patent resisting a revocation action.

Length of proceedings

Usually, depending on the complexity and urgency of the case, a decision is rendered within one to six months from the submission of the statement of claim for infringement requesting a preliminary injunction. However, the court can render a decision within a week from submission. The parties will normally submit at least two briefs each.

 
34. If a preliminary injunction is granted and the main infringement action is finally lost, can the defendant claim damages for the unjustified preliminary injunction?

The claimant has strict liability for damages suffered as a result of an unjustified preliminary injunction. To obtain a preliminary injunction, the claimant must have deposited security with the court, normally in the form of a bank guarantee, which can be used by the defendant for compensation of damages suffered if the claimant does not or cannot pay. Generally, damages are limited to compensation for economic loss and are normally based on loss of sales. However, damages can also include compensation for loss of goodwill and costs related to, for example, premises, equipment and employees that have not been used as a result of the injunction. Recent case law also shows that the courts are generous when assessing the amount of damages to be awarded and that this amount is not limited to the amount of the security provided initially by the claimant.

 

Final remedies

35. What remedies are available against a patent infringer?

The final remedies available under Swedish law are as follows:

  • Injunctive relief against further infringement.

  • Reasonable compensation for the use of the invention and, in the case of negligent or intentional infringement, damages for any additional loss caused by the infringement.

  • Delivery up and destruction of infringing products or other measures required to prevent further infringements, including recall of infringing products from the market.

  • Publication of the judgment on infringement.

Permanent injunction

If requested by the claimant, a permanent injunction normally follows a finding of infringement, except in exceptional circumstances (for example, where a good faith infringer has admitted infringement and ceased to infringe immediately on notice (although, in this case, the necessity to institute proceedings should be considered)).

In principle, the injunction must reflect the infringing act or the attempted infringing act and refer to the item(s) alleged to infringe the patent. An injunction cannot be directed at a person that has not been a party to the proceedings. However, it is not uncommon to include representatives of a legal entity as co-defendants so that the injunction can also be effective against them personally.

Monetary remedies

The minimum level of compensation for patent infringement is reasonable compensation for the use of the invention. If the infringement is made either intentionally or with negligence, the patentee is also entitled to compensation for further losses caused by the infringement, which normally consist of loss of sales.

While the court can consider both the profit made by the infringer and the interest of the patentee in preventing infringement when establishing the amount of damages awarded, the main principle is that the patentee must only be compensated for its actual economic loss. Therefore, account of profits and punitive damages are not available under Swedish law.

Liability and quantum of damages are generally decided by the same court and at the same trial, except where:

  • The claimant's action is limited to a declaratory judgment of infringement.

  • An action for damages has been split into two actions by a special decision of the court, so that the issue of infringement is decided in an intermediate judgment. This only occurs where there are procedural advantages to do so, mainly the possibility that there will eventually be no need for a decision on damages.

Delivery up or destruction of infringing goods

The claimant can request the delivery up or destruction of any infringing goods. Before issuing an order of delivery up or destruction, the court must make an assessment of proportionality.

Publication of the decision

On a request of the claimant, the court can issue an order against the defendant to bear the costs of suitable measures to disclose information about the judgment. These measures can include the publication of the judgment.

Recall order

The claimant can request that the infringing products be recalled from the market. The court must make an assessment of proportionality before issuing a recall order.

Declaration of infringement and validity

It is possible to obtain a declaratory judgment of infringement, which will have a prejudicial effect in future cases based on the same set of facts (that is, same patent and same product or method).

It is not possible to obtain a declaratory judgment on the validity of a patent. A patent is considered to be valid unless it has been revoked by a final judgment (or decision in opposition proceedings).

Others

If criminal proceedings are initiated, the sanctions available for criminal infringement include:

  • Fines.

  • Imprisonment for a maximum of two years.

  • Forfeiture of property pertaining to the infringement (or the value of this property) and of the profit made as a result of the infringement.

 

Appeal procedure

36. What avenues of appeal are available for a defeated party and under what conditions?

It is possible to appeal both judgments issued after main proceedings and decisions related to preliminary injunctions. Appeals are lodged with the Svea Court of Appeal in Stockholm. All appeals require leave from the Court of Appeal. Leave to appeal is normally granted in patent cases. Leave to appeal is also required for appeals before the Supreme Court, but is not usually granted in patent cases. The length of proceedings is normally the same as for first instance proceedings (that is, one to six months for preliminary injunctions and 18 to 24 months for final judgments).

 

Litigation costs

37. What level of cost should a party expect to incur to take a case through to a first instance decision, preliminary injunction proceedings and appeal proceedings?

The average costs for patent litigation relating to infringement in Sweden are normally between EUR100,000 and EUR200,000 at first instance. This is doubled if proceedings also include an action for invalidity. Costs in the Court of Appeal are usually about 60% of those of first instance proceedings. About 40% of the total costs are incurred during preliminary proceedings. The costs of Supreme Court proceedings are similar to those of Court of Appeal proceedings, or higher.

As a main rule, the losing party must reimburse the winning party's reasonable litigation costs, including attorneys' fees. In practice, the courts consider incurred costs that are reasonable.

 

Reform

38. What are the important developing and emerging trends in your country's patent law?

The Swedish Patents Act is currently under revision with the aim to:

  • Modernise its provisions and language.

  • Harmonise its material rules with those of the Unified Patent Court (UPC) Agreement.

The government has examined a proposal for a new specialised court system for all intellectual property and marketing/unfair competition cases, including patent cases. A formal Bill was introduced in December 2015. If the Bill is passed by Parliament, the new court system is planned to be introduced on 1 September 2016.

The proposed Patent and Market Court will replace the Stockholm District Court as the exclusive court of first instance for patent cases. The Patent and Market Court of Appeal will replace the Svea Court of Appeal as the exclusive court of second instance for patent cases. The new courts will be located at the Stockholm District Court and Svea Court of Appeal, meaning that for patent cases, the difference in practice will be minimal. It is also expected that the new court will co-operate with the regional division of the UPC for Sweden and the Baltic countries with regards to resources.

One proposed change is that it will not be possible to appeal cases from the Patent and Market Court of Appeal to the Supreme Court, unless the Patent and Market Court of Appeal considers the case to be of prejudicial interest. Another proposal is the possibility to combine intellectual property cases to a larger extent (for example, civil and criminal proceedings relating to intellectual property, and intellectual property and unfair competition cases). Although the introduction of this new court system will have a great impact on other intellectual property and unfair competition cases, the impact for patent cases is expected to be limited in practice.

 

Online resources

Patents Act (Patentlag) (1967:837)

W www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Patentlag-1967837_sfs-1967-837/

Description. The Patents Act is available on the official website of the Swedish Parliament. The website is up-to-date. In the case of mistakes, the official printed version of the legislation always takes precedence.

English translation of the Patent Acts

W www.prv.se/globalassets/dokument/patent/informationsmaterial/the-patents-act---unofficial-translation.pdf

Description. The English translation of the Patents Act is published on the Patent Office's website, as translated by the Ministry of Justice. The translation is unofficial and non-binding, and is potentially out-of-date.

Code of Judicial Procedure (Rättegångsbalk) (1942:740)

W www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/sfs_sfs-1942-740/

Description. The Code of Judicial Procedure is available on the official website of the Swedish Parliament. The website is up-to-date. In the case of mistakes, the official printed version of the legislation always takes precedence.

English translation of the Code of Judicial Procedure

W www.government.se/contentassets/a1be9e99a5c64d1bb93a96ce5d517e9c/the-swedish-code-of-judicial-procedure-ds-1998_65.pdf

Description. The English translation of the Code of Judicial Procedure is published by the government and reflects the Code as of 1 January 1999. The translation is non-binding and partly out-of-date.



Contributor profiles

Jonas Westerberg, Partner

Advokatfirman Lindahl

T +46 8 527 70 919
F +46 8 667 73 80
E jonas.westerberg@lindahl.se
W www.lindahl.se/en

Professional qualifications. Advokat, Sweden, 1995

Areas of practice. Intellectual property; IP disputes with a focus on patents, especially pharmaceutical patents and SPCs; trade secrets and copyright.

Non-professional qualifications. LLM, Uppsala University, 1989; Law School, University of Minnesota, 1988

Languages. Swedish, English

For more information and recent events, please visit: www.lindahl.se/en/our-people/jonas-westerberg.

Annie Kabala, Associate

Advokatfirman Lindahl

T +46 8 527 70 940
F +46 8 667 73 80
E annie.kabala@lindahl.se
W www.lindahl.se/en

Professional qualifications. Advokat, Sweden, 2015

Areas of practice. Intellectual property; marketing law; IP disputes; life sciences; regulatory issues; mergers and acquisitions.

Non-professional qualifications. Law clerk, Stockholm District Court, 2013-2014; LLM, Stockholm University, 2011

Languages. Swedish, English, Polish

For more information and recent events, please visit: www.lindahl.se/en/our-people/annie-kabala.

Daniel Nilsson, Associate

Advokatfirman Lindahl

T +46 8 527 70 989
F +46 8 667 73 80
E daniel.nilsson@lindahl.se
W www.lindahl.se/en

Areas of practice. Intellectual property; marketing law; IP disputes.

Non-professional qualifications. LLM, Stockholm University, 2015

Languages. Swedish, English

For more information and recent events, please visit: www.lindahl.se/en/our-people/daniel-nilsson.

Anna Tarring, Associate

Advokatfirman Lindahl

T +46 8 527 70 970
F +46 8 667 73 80
E anna.tarring@lindahl.se
W www.lindahl.se/en

Areas of practice. Intellectual property; marketing law; IP disputes; life sciences; regulatory issues; mergers and acquisitions.

Non-professional qualifications. LLM, Lund University, 2014; Melbourne Law School, University of Melbourne, 2013; Westminster Law School, University of Westminster, 2012

Languages. Swedish, English

For more information and recent events, please visit: www.lindahl.se/en/our-people/anna-tarring.


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