The Svea Court of Appeal has in a recent judgment (T 2980-11) confirmed that file or prosecution history estoppel applies in Sweden. AGA Medical Corporation (AGA) claimed that Occlutech GMBH’s (Occluctech) products infringed its patent, and applied for an injunction. During patent prosecution at the EPO, the applicant had limited claim 16 of the patent-in-suite in respect to a specific feature.

The Svea Court of Appeal found that Occlutech’s product did not infringe the patent claims as granted. The question was then whether Occlutech’s products could infringe the patent due to the doctrine of equivalence. The specific feature in claim 16, introduced during patent prosecution, was considered to be a characterizing feature. It was introduced in order to distinguish the invention from known prior art. This feature was, according to the Court, essential to the grant of the patent. In the view of the Court, this speaks strongly against extending the scope of protection to include a product that differs from the claim on this very point. The Court also explicitly stated that this applies irrespective of whether the invention is considered to be a pioneering invention or not.

The judgment was not appealed to the Swedish Supreme Court and is therefore final.