This country-specific Q&A provides an overview of Patent Litigation laws and regulations applicable in Sweden.
What is the forum for the conduct of patent litigation?
The Swedish Patent and Market Court (PMC) in the first instance. Patent and Market Appeals Court (PMAC) being the second instance. Possibility of further appeal to the Swedish Supreme Court is at the sole discretion of the PMAC to allow for the same and leave to appeal must also be granted. Patent cases are very rarely heard by the Supreme Court.
What is the typical timeline and form of first instance patent litigation proceedings?
Typical patent cases in the first instance have a timeframe of between 1.5-2 years from filing of the action until rendering of the judgment after a main oral hearing. Infringement and invalidity claims (a countersuit must be filed) are generally combined.
Issues of claim construction are considered within the infringement and invalidity proceedings. Damages claims are also typically heard within the framework of the proceedings but due to evidentiary burden, litigation costs, desire to slimline the proceedings etc. the possibility of declaratory judgment in that regard might be an option.
Can interim and final decisions in patent cases be appealed?
Interim and final decisions can be appealed, subject to leave to appeal being granted. As outlined above, under Question 1, appeal to the Supreme Court is at the discretion of the PMAC. The typical timeframe before the PMAC in a patent case is between 1-1.5 years. Final decisions are generally not fully enforceable until the appeal process has been exhausted and the judgment thus has obtained legal force. Interim decisions are enforceable immediately unless stayed by the appeals court.
Which acts constitute direct patent infringement?
Manufacturing, offering, putting on the market, using or importing a product protected by a patent, or possessing such a product for any such purpose.
Using a process that is protected by a patent or, where it is clear from the circumstances that the process may not be used without the consent of the patentee, offering the process for use in Sweden.
Offering, putting on the market, using or importing a product that has been manufactured by a process protected by a patent, or possessing the product for any such purpose.
Direct infringement requires an act of wilfulness or negligence from the infringing party.
Do the concepts of indirect patent infringement or contributory infringement exist? If, so what are the elements of such forms of infringement?
Yes. Indirect infringement can be applicable under the following conditions:
A third party without the consent of the patentee, exploits the invention by offering or supplying the means to use it in Sweden.
The means relate to an essential element of the invention.
The party offering or supplying the means knows, or it is obvious from the circumstances, that the means are suited and intended to be used in conjunction with use of the invention.
If aforesaid means, however, are readily available on the market it is also required that the person offering or supplying the same has attempted to induce the recipient to commit the infringing act.
How is the scope of protection of patent claims construed?
The scope of protection is determined by the claims. The description and drawings may be used to interpret the claims. All features of the patent claim must be satisfied for purposes of infringement but under very specific circumstances the doctrine of equivalents can be applicable. Prosecution documents may be relevant for claim interpretation, however, there is a restriction on prosecution history broadening the interpretation of the claim.
What are the key defences to patent infringement?
Non-infringement and/or invalidity claims (which as outlined above under Question 2 requires a countersuit).
What are the key grounds of patent invalidity?
Anticipation (lack of novelty), that the invention was obvious (lack of inventive step), insufficient disclosure, that the invention was extended to include subject matter that lacks support in the application as filed, and that a third party has better right to the invention (entitlement).
How is prior art considered in the context of an invalidity action?
Prior art is considered to be everything that prior to the filing date is made available to the public, regardless of whether this has been made in writing, by lectures, by use or otherwise. Also, the contents of an earlier patent application filed in Sweden or at the EPO before said date shall be considered as known if it is subsequently published. It is not possible to combine prior art documents for the purposes of assessing novelty.
Can a patentee seek to amend a patent that is in the midst of patent litigation?
A patent that is subject to invalidity litigation can be amended by the court if this is requested by the patentee when submitting its statement of defense.
Is some form of patent term extension available?
Supplementary Protection Certificates (SPC) for medicinal and plant protection products are available and extend the term of protection by up to five years (medicinal products may also be protected by a paediatric extension, which extends the lifetime of an SPC by a further six months).
SPCs can be challenged in court and the most common grounds for such challenges are that the basic patent was invalid or that the marketing authorisation relied on was not the first.
How are technical matters considered in patent litigation proceedings?
Expert witnesses are often used to corroborate technical matters. They are invoked by the parties and heard during the main oral hearing under oath. Prior to the hearing they will also issue a written opinion which is invoked in the proceedings as evidence. The experts will during the hearing be subject to cross-examination.
The experts are compensated by the party invoking them (although such costs can be recouped as part of litigation costs by the winning party) but are generally otherwise often impartial. Any ties or duties within the organization of the party invoking them will otherwise reduce the evidentiary value attributed to their testimony.
Is some form of discovery/disclosure and/or court-mandated evidence seizure/protection (e.g. saisie-contrefaçon) available, either before the commencement of or during patent litigation proceedings?
Under the Swedish Code of Judicial Procedure there is a possibility of presenting discovery/disclosure requests if the opposing side is in possession of documents etc. which could have evidentiary value in the proceedings. If said documents encompass trade secrets the requesting party must show that exceptional circumstances nevertheless warrant the request. In addition, there is the possibility of requesting evidentiary hearings with for instance key persons within the organization of the opposing party for purposes of identifying documents to be subject to disclosure.
Another procedural option closely related to discovery is to present a request during the preparatory stage of the proceedings that the opposing side be ordered to produce a list of all the written evidence in its possession.
Furthermore, there is also the possibility to requesting the court to order infringement investigations to be carried out at the premises of the alleged infringer to secure evidence of the infringement.
Are there procedures available which would assist a patentee to determine infringement of a process patent?
Procedural disclosure and discovery requests as outlined above under Question 13 could be valuable in this regard or depending on the circumstances at hand the use of infringement investigation order as also mentioned under aforesaid question.
Are there established mechanisms to protect confidential information required to be disclosed/exchanged in the course of patent litigation (e.g. confidentiality clubs)?
All documents submitted to Swedish courts become matter of public record unless confidentiality request is made. Such confidentiality, however, applies only with respect to third-party file inspection. Opposing party and its counsel can thus not be prevented from gaining access to such confidential documents. However, they can be subject to damages etc. for any disclosure or use of the same.
Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system?
It is possible to oppose a patent with the Swedish Patents and Registration Office (PRV) within nine months after it has been granted and published. Opposition proceedings before PRV can occur concurrently with validity proceedings. The PMC is, however, generally reluctant to stay litigation proceeding pending opposition.
To what extent are decisions from other fora/jurisdictions relevant or influential, and if so, are there any particularly influential fora/jurisdictions?
EPO case law is applicable and relevant in Swedish court proceedings. In multi-jurisdictional patent litigations – in particular in pan-European litigations – it is not uncommon for the parties to invoke foreign judgments. Such judgments can, depending on the circumstances at hand, be attributed some evidentiary value by the court. In particular in cases where no Swedish precedent exists the court might be more inclined to be influenced by foreign judgments.
How does a court determine whether it has jurisdiction to hear a patent action?
The PMC and PMAC have exclusive jurisdiction regarding patents granted by PRV and the Swedish part of patents granted by EPO and validated here. Anti-suit injunctions per se are not available under Swedish law.
What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases?
Alternative dispute resolution (ADR) is not a common way of settling patent cases. A patent infringement dispute can be submitted to arbitration (although it is very rare). However, an invalidity action falls under the exclusive jurisdiction of the court.
What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?
Swedish patent law does not stipulate any prerequisites to commence litigation. Generally – and this is almost always the case when parties are represented by attorneys – a cease and desist letter is sent prior to filing of action. A strong reason for this is also the avoidance of initiating an unnecessary trial and so risking having to compensate the respondent for litigation costs should they concede the action.
In infringement proceedings a request for compensation for damages can only cover damages incurred the preceding five years before the action was brought.
Also an action for better right to the invention can only be brought by the party claiming that entitlement and the action must be filed within one year from the date on which the party claiming to have a better right learned of the grant of the patent.
Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?
The patentee and licensees (both exclusive and non-exclusive). A licensee must inform the patentee of its intent to file an action.
Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?
Anyone for whom the patent is detrimental has standing. The plaintiff must report the action to PRV and notify all registered licensees and pledgees.
Are interim injunctions available in patent litigation proceedings?
The patentee (or licensee) may request a preliminary injunction (PI) under a penalty of a fine either prior to, or during, main infringement proceedings. This option is frequently used and a PI-request is normally presented as part of the proceedings on the merits.
In order for a PI-request to be successful the plaintiff must show probable cause that the patent is being infringed, or that an infringement is imminent. Furthermore, it has to be established that there are reasons to believe that the respondent, by continuing the infringement, will depreciate the value of the exclusive right provided by the patent. The plaintiff must present sufficient security, usually a bank guarantee, covering the harm the respondent might suffer from an unjustified PI. The liability in this regard is strict and the bank guarantee thus does not serve as a cap if further damages can be shown.
If the respondent has filed a countersuit for invalidity the court will consider the likelihood of the patent being declared invalid and a PI will not be granted if it is held likely that the patent is invalid.
When reviewing PI-requests the court will make a proportionality assessment and balancing of interests.
PI-requests are typically handled without any oral hearing on the basis of written pleadings and evidence only and within a timeframe of 1-3 months after the request has been presented.
Swedish courts are generally speaking very reluctant to render ex parte PI-decisions.
What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered?
Injunction under penalty of a fine against further infringement, reasonable compensation for the use of the invention, additional damages in cases of negligent or wilful infringement, seizure and destruction of infringing products, other measures to prevent further infringements such as recalling products from the market and compensation for costs for publication of the judgement on the infringement.
Injunctions combined with damages being the most common forms of relief.
On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages?
If the court finds that an infringement has been committed with intent or through negligence, the respondent can be held liable to pay reasonable compensation for the use of the invention. This is an amount that corresponds with an estimated reasonable license fee. Where the infringement is committed without intent or negligence, the respondent is only liable to pay aforesaid compensation for use of the invention to the extent this is found reasonable.
Furthermore, the respondent can be held liable to pay compensation for any further damages caused by the infringement, e.g. lost profits, unnecessary costs of production etc. In this respect it shall also be taken into account the patentee’s interest in protecting the patent from being infringed and thus decreased goodwill and profits made by the infringing party can also be considered. Punitive damages, however, are not available.
How readily are final injunctions granted in patent litigation proceedings?
Final injunctions are generally always granted where infringment has been established.
Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief?
The Swedish Patents Act does contain specific provisions for obtaining positive and negative declaratory judgment. A positive declaratory action can be filed by the patentee or licensee. A negative declaratory action can be filed by anyone operating (or intending to operate) an enterprise, to have established whether the patent constitutes a hindrance for said enterprise or not. For both positive and negative actions to be permissible uncertainty must be at hand which is to the detriment of the plaintiff.
What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?
Litigation costs in typical patent cases before PMC can be in the approximate range of EUR 350.000 – 650.000. The higher end of the spectrum involves the combination of infringement and invalidity proceedings. In the second instance additional costs in the range of EUR 200.000-400.000 should typically be factored in.
Aforesaid costs, however, can vary significantly depending on the complexity of the matter, procedural issues, amount of evidence invoked etc.
Can the successful party to a patent litigation action recover its costs?
The losing party is generally responsible for compensating the winning party for its litigation costs to the extent that these are deemed reasonable by the court. Recoverable costs include attorneys’ fees, costs of evidence (including experts), work carried out by representatives of the winning party etc.
Plaintiffs from a jurisdiction outside of the EEA with which Sweden does not have a relevant mutual agreement may under certain circumstances be required, if the plaintiff requests this, to present security for litigation costs in Sweden.
What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?
The vast majority of patent litigation cases in Sweden are Life Sciences related.
What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?
For the coming year we do not predict any changes in the status quo as described above under Question 30. However, in the coming 5+ years we predict that Sweden will experience a tremendous growth in patent litigation cases relating to connected/autonomous vehicles as well as in the Fintech industry.
Which aspects of patent litigation, either substantive or procedural, are most in need of reform in your jurisdiction?
Further and more guidance in case law on the important issue of imminent infringement in particular in relation to pharmaceuticals would be highly welcomed. This will also have bearing in terms of the relatively new stipulations on the SPC manufacturing waiver.
What are the biggest challenges and opportunities confronting the international patent system?
Brexit and the long awaited UPC have certainly posed some significant challenges. Rise of autonomous and connected vehicles as mentioned above are predicted to be of very high relevance going forward. The Covid-19 pandemic has also globally raised awareness on issues of compulsory licenses, patent pools etc.
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