Under review: patent legislation in Sweden
An excerpt from The Patent Litigation Law Review, 6th Edition
Types of patents
There are two types of patents that have effect in Sweden. The first is Swedish national patents, which are prosecuted at the Swedish Intellectual Property Office (SIPO). The second is European patents designating Sweden, which are prosecuted at the European Patent Office (EPO) and then validated in Sweden. The granting of national patents and European patents is preceded by examination by the respective patent office.
In Sweden, there is no possibility of extending the patent period per se; however, supplementary protection certificates (SPC) may be granted for patents covering medicinal products, veterinary medicinal products and plant protection products. An SPC extends the protection of these products for a maximum of five years after the expiry of the basic patent. The granting of an SPC is subject to several conditions.
Material layer
in Intrusion
In order for there to be an infringement, an invention claimed must be used in such a way that it falls within the exclusive right granted by the patent. The first question is thus to determine the scope of protection for a patent and to determine whether the infringing object falls within this scope. If this is the case, it must be determined whether any measures covered by the exclusive right have been taken in respect of that object.
Extent of protection
There is a use of the patented invention if a product or process corresponds to all parts of a patent claim, either literally or, exceptionally, in a corresponding manner. The scope of protection is determined by the claims, and the description can be consulted to inform about the understanding of the claim.48
The Swedish courts must comply with Article 69 of the European Patent Convention and the Protocol on the interpretation of Article 69.49 This essentially means that the courts strive to find a construction that strikes a balance between a strictly literal reading of the claim and a more liberal description-oriented construction, thus combining a fair protection for the patent holder with a reasonable degree of legal certainty for third parties. The scope of protection must be determined in the light of the inventive concept, as mediated by the patent, and with reference to what was known in the art on the application (or earlier priority date).50
Reference can also be made to the indictment when interpreting ambiguities in the claim, but only to limit the scope of protection.51
The application of the doctrine of equivalence does not mean that the question of infringement must be decided without regard to the patent claims. All parts of the invention must be present, either literally or in a corresponding manner. If there is a discrepancy between the patent claim and the object of the infringement with regard to one or more features, an equivalence test will determine whether there may nevertheless be an infringement.52
The test examines whether: the object of the intrusion completely uses the inventive concept; it – regardless of the literal discrepancy between the object of the infringement and the claim – achieves the same technical results as the invention; the deviations are close at hand for a person skilled in the art; and the solution used by the object of the intrusion is equivalent to the alleged one. The nature of the invention is also relevant because the scope for extended protection based on equivalence may be significant for a groundbreaking invention, while it will be very limited for a more common invention.
Intrusion documents
Intrusion can be direct or indirect. Direct infringement is to make, offer for sale, place on the market or use a patented product as well as import into Sweden or storage in Sweden of the product for any of the mentioned purposes.53 There is also direct infringement if any of these actions are taken in respect of a product obtained directly from a patented process. The use of a patented process is finally a direct infringement, as is the offer of the process for use in Sweden, provided that the infringing party knows or it is obvious in the circumstances that the process is not permitted without the patentee’s consent.
Indirect infringement is the supply or offer in Sweden of means, which relate to an essential part of the invention, for implementing the invention in Sweden, with knowledge of, or if it is obvious in the circumstances, that the means are suitable and intended. to practice the invention.
Only documents made in Sweden can infringe a Swedish patent; however, a transaction with an international dimension can still infringe on a Swedish patent. The courts have held that an offer made from Sweden by a company formed in Sweden to a buyer in Finland was an infringing act concerning a Swedish patent, regardless of whether the offered product was delivered directly from the United Kingdom to Finland.54
Non-commercial acts are exempt from patent infringement liability, but the provision or offering of funds to a non-commercial party will still be indirect infringement, although the application of the invention is exempt.
Assisting or otherwise promoting direct or indirect infringement through action or advice (grants) is also an action.55
Imminent intrusion (ie if someone takes preparatory action for an intrusion) can be ordered. The challenge in this context is often to establish that the intention of the steps was to carry out the infringing act despite the existing patent protection.56
ii Invalidity and other defenses Invalidity
A defendant who wishes to invoke invalidity as a defense in the infringement proceedings must also bring separate revocation proceedings against the patent holder. It is thus not possible to determine validity with effect only between the parties.
A patent must be annulled by a court if one of the following conditions is met:57
- the patent was granted despite the fact that the patent law’s requirements for patentability were not met;
- the invention is not described so clearly that it enables one skilled in the art to practice the invention;
- the patent covers a substance that did not appear in the application on the day it was filed; or
- the scope of protection of the patent has been extended after the grant.
The first item in the list above includes the lack of novelty and obviousness but also other aspects of patentability; the patent is thus invalid if the object does not qualify as an invention, belongs to a non-patentable category, has no technical effect or industrial application.
Novelty is examined by determining the content of the relevant prior art and then comparing it with the present patent to find out whether the prior art foresees all the features of the invention claimed by the patent.58
To determine whether an invention was obvious on the filing date, the courts apply the problem-and-solution method. This means determining what distinguishes the invention which the patent claims from the closest prior art. The technical effect of these distinctive features is then used to formulate an objective technical problem, and it is investigated whether a theoretical person skilled in the art would arrive at the invention when solving that problem.59
The common knowledge of the professional (CGK) is important when determining novelty and obviousness as the professional’s understanding of known technology and the doctrine of the patent, his or her ability to solve the objective technical problem and various other issues are affected by CGK.60
A claim to priority can be questioned in connection with novelty and obviousness by claiming that the invention claimed by the patent is not directly and unambiguously disclosed in the priority application or that priority cannot be claimed on the basis of that application for other reasons.
Failure to provide an enabling disclosure is a ground for invalidity. CGK is of great importance in determining whether the information is sufficient.61 For a patent holder, this can be a dilemma as a large dependence on CGK for activation can be a problem in terms of obviousness and vice versa.
A patent is invalid if it contains additional material. Such additions arise through changes made during prosecution and the test is whether information has been introduced in the patent claim that the professional, on the basis of his CGK, could not directly and unambiguously retrieve from the application upon application. date.62
The fourth ground of invalidity concerns changes to the claims after the grant, which leads to a wider scope of protection.
Other defenses Non-intrusion
The non-infringement argument is usually the first line of defense and can be challenging for a patent holder to overcome, as the burden of proof for infringement rests with the applicant.
Laches / estoppel and limitation.
Claims for damages are statute-barred if the action has not been brought within five years of the damage occurring. An exception applies in connection with grant and objection procedures.63
Apart from this general limitation period, there is no obligation for a patent holder to act in the event of an infringement, and an infringement cannot be defended by invoking the patent holder’s failure to act in the event of a known infringement;64 however, there is always an opportunity to invoke communication between the patent holder and the infringer in order to construct a contractual defense that includes the patent holder’s approval of certain otherwise infringing acts or waiver of claims.
License and exhaustion
If the patentee has consented to the use of the invention by a license (express or implied), this use will not be infringed;65 however, a license only entitles the licensee to use the invention within its scope.
The patent right is exhausted in a copy of a patented product that has been placed on the market within the European Economic Area (EEA) by the patentee or with the patentee’s consent.66 Exhaustion is regional; an infringement thus occurs when a copy placed on the market outside the EEA is imported into Sweden.
Right of use
Anyone who has used the invention commercially in Sweden or has taken significant measures to use the invention commercially in Sweden when the patent application was filed has a previous right of use.67 The right is limited to the general nature of the use on the day of application.
Bolar exception and other exceptions
Sweden has implemented one Bolar exceptions allowing studies, trials, examinations and other practical measures with a reference medicinal product, if the uses of an invention relating to the reference medicinal product are necessary to obtain a marketing authorization for a medicinal product.68
There is also an exception to the use of the invention in experiments performed on the invention as such. Preparation of medicines in pharmacies according to the doctor’s prescription in individual cases and subsequent measures regarding such medicines are exempt from infringement. Private and non-commercial use of an invention are also excluded.
Competition team
The maintenance of patent rights by a dominant company may in special circumstances be an abuse of the dominant position. It is clear from the preliminary ruling of the European Court of Justice in Case C-170/13 (Huawei technologies) to apply for an injunction against infringement of a substantial standard patent may involve abuse if conditions relating to the offer of a fair, reasonable and non-discriminatory license (FRAND) have not been complied with before the injunction was sought. It also follows from the judgment that damages for infringement are generally not abuse. The ruling refers to EU law that is directly applicable in Sweden. The Swedish courts have not yet ruled on any FRAND cases.