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Applying for a patent

Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability in Sweden are the same as those that apply in the rest of the European Union; the requirements are:

  • novelty;
  • inventive step; and
  • that the invention is industrially applicable. 

What are the limits on patentability?

In addition to inventions that contradict public morality, the following inventions cannot be patented:

  • a discovery, scientific theory or mathematical method;
  • an aesthetic creation;
  • a scheme, rule or method for performing a mental act, playing a game, doing business or a computer program;
  • a presentation of information; and
  • a procedure for surgical or therapeutic treatment or diagnosis, practised on humans or animals.  

To what extent can inventions covering software be patented?

In Sweden, program code or pure business methods cannot be patented as such. However, if the invention in question is of a technical nature (ie, it has a technical effect and includes a business method or is carried out or can be carried out by a computer program), it can be patented.

To what extent can inventions covering business methods be patented?

As a pure business method is not of a technical nature, it does not constitute an ‘invention’ as understood under Swedish patent law. However, an invention which constitutes a business method, but which makes use of specially adapted technology in such a way that the solution to the problem is purely technical, can be patented.

To what extent can inventions relating to stem cells be patented?

No inventions involving human stem cells can be patented in Sweden. The EU Biotechnology Directive was implemented in Swedish law on 1 May 2004 and the Swedish Patents Act states that “the use of human embryos for industrial and commercial purposes” must be excluded from patentability. Therefore, methods which use human embryos (eg, the production of embryonic stem cells) are not patentable. 

Are there restrictions on any other kinds of invention?

An invention cannot contradict public order or morality and cannot constitute:

  • a discovery, scientific theory or mathematical method;
  • an aesthetic creation;
  • a scheme, rule or method for performing a mental act, playing a game, doing business or a computer program;
  • a presentation of information; or
  • a procedure for surgical or therapeutic treatment or diagnosis, practised on humans or animals.

Grace period

Does your jurisdiction have a grace period? If so, how does it work?

Yes, but in a very limited sense and the period is only six months. The grace period is calculated from the filing date of the EU or national application.

The grace period means that a patent may be granted despite the fact that the invention was made publicly available during the last six months due to either obvious misuse in relation to the applicant or its predecessor’s rights or that the applicant or its predecessor has presented the invention at an official or officially recognised international exhibition falling within the terms of the Convention on International Exhibitions signed in Paris on 22 November 1928.

No type of statement or declaration by the applicant is required to invoke the grace period.

Oppositions

What types of patent opposition procedure are available in your jurisdiction?

When a patent is granted by the Swedish Patent and Registration Office, it is published in the Swedish Patent Gazette and any party can oppose it for a period of nine months. Should the office find an opposition justified, it can amend the patent claims or revoke the entire patent. The opposing party can base its opposition on the following grounds:

  • The patent has been granted despite the basic conditions not being met (ie, the invention lacks novelty, inventive step or industrial applicability).
  • The patent may have been granted to the wrong inventor.
  • The invention has not been described clearly enough for a person skilled in the art to be able to perform it.
  • The scope of the patent is wider than what was covered by the application when first filed.

An opposition must be submitted to the patent office in writing and within the opposition period. The opposition document must state the grounds on which the opposition is based and must be signed by the party seeking to oppose or by its agent. The patent office then examines the opposition document and allows the patent owner to review it, including all cited documents submitted by the opponent. The patent owner will be given the opportunity to respond to the opposition in writing before a decision is made. A decision can:

  • reject the opposition and keep the patent as granted;
  • maintain the patent with amended wording; or
  • revoke the patent. 

Apart from oppositions, are there any other ways to challenge a patent outside the courts?

Yes. Anyone can submit an objection to an invention during the handling time. When the patent office determines whether to grant a patent based on the submitted application, everything that is submitted or raised during the handling procedure is taken into consideration. If the patent office finds the objection to be significant to the continued process, the objection will be provided to the applicant, which will be given the opportunity to comment. It is important to note that an objection presented at this stage cannot be solely based on a claim that the invention lacks novelty due to public practice as this can only be asserted in an opposition. 

How can patent office decisions be appealed in your jurisdiction?

Yes. If a patent application is rejected, the applicant can appeal the decision within two months of the rejection. The same applies for an unsuccessful party in opposition proceedings. The appeal should be addressed to the Swedish Patent and Market Court but submitted to the patent office. In the submitted document the appellant must state why the decision is considered to be incorrect.

Timescale and costs

How long should an applicant expect to wait before being granted a patent and what level of cost should it budget for?

The patent office will provide the first technical notice within approximately seven months from the date on which a patent is filed.

There is a filing fee of Skr3,000 (approximately €290), which covers the registration and search fees. The basic granting fee is Skr2,500 (approximately €243), which can be increased (eg, if the applicant submits new claims after the application was first filed). The annual fee is applicable on year three and starts at Skr1,400 (approximately €136) and is subject to a small increase each year, rising to Skr7,000 in year 20.

In addition, the cost for a patent attorney to draft the application should be taken into consideration. For a standard application, drafting costs approximately Skr40,000 to Skr70,000. This sum may seem high, but a well-written application is crucial to successfully prosecuting, securing, using and protecting a patent.

Enforcement through the courts

Strategy

What are the most effective ways for a patent owner to enforce its rights in your jurisdiction?

If a patent has been infringed, the most effective means of enforcement is through court proceedings. Due to the new Patent and Market Court, the enforcement process is effective and is handled by expert judges and technical experts. An experienced patent litigator will understand the process and can guide the patent owner through the different stages of enforcement. 

What scope is there for forum selection?

As a result of the creation of the Patent and Market Court, there is now no option to select another forum as all disputes regarding patents (eg, infringement or validity proceedings) are handled by the court. However, at an international level, patent owners can choose the jurisdiction in which to commence proceedings considering the different national rules regarding these kinds of disputes. 

Pre-trial

What are the stages in the litigation process leading up to a full trial?

Although not compulsory by law, the Swedish Bar Association requires that a qualified Swedish lawyer grants the counterparty a reasonable amount of time to assess a claim before legal actions are taken. Thus, the first step before litigation is usually to send a warning letter to the alleged infringer.

The proceeding involves a written procedure (during which the parties submit written statements to the court as well as the evidence they would like to use to support their case). In practice, this stage often involves the submission of a large number of documents by both parties, in addition to the compulsory application for summons and statement of reply.

The court will also summon the parties to a preliminary hearing (ie, a case management conference, during which the case and the continuing process are discussed).

In most cases the court will close the case well in advance of the main hearing, after which the parties may not submit any new evidence to support their case unless under exceptional circumstances. It is therefore important that the parties are well prepared in advance.

How easy is it for defendants to delay proceedings and how can plaintiffs prevent them from doing so?

To delay proceedings defendants will usually:

  • apply for a deferral for submitting the documents ordered by the court;
  • submit an excessive amount of documents, which can force the plaintiff to apply for a deferral in order to review the material;
  • put forward a claim for the production of documents; or
  • use other procedural claims to slow down the process.

In such a case the plaintiff can request the court to prevent this kind of behaviour by using Chapter 42, Sections 15 and 15a of the Swedish Code of Judicial Procedure. 

How might a party challenge the validity of a patent through the courts in anticipation of a potential suit for infringement being issued against it?

The handling of patent cases in Sweden is bifurcated, meaning that infringement issues and revocation issues are handled separately. As a result, in preliminary injunction proceedings the court will not consider any invalidity arguments. Instead, the contested patent will be presumed to be valid as granted – even if there have been appealed decisions by the European Patent Office revoking the patent or judgments in other jurisdictions revoking the national equivalent to the patent in question. Provided that there are no robust non-infringement arguments, a defence against a preliminary injunction claim based on invalidity arguments necessitates pre-emptive actions claiming the revocation of the patent or patents. Otherwise, the court will not take such arguments into account.

Thus, if the strategy is to take full advantage of being the first party to act and to be in a position to remain on the market, the party should prepare for an invalidity action at the Swedish Patent and Marketing Court at an early stage. Such proceedings should be initiated before (or at least at the same time as) any preliminary injunction proceedings, otherwise the court will presume that the patent is validly granted. A request for a preliminary injunction may be expected immediately after the launch of the product in question. The timeframe for preliminary injunction proceedings is short – normally a decision can be expected within four to six weeks.

At trial

What level of expertise can a patent owner expect from the courts?

The Patent and Market Court and the Patent and Market Court of Appeal are specialised courts that came into being on 1 September 2016. Essentially, the two courts handle all cases and matters relating to IP law, competition law and marketing law in Sweden. Consequently, all issues relating to patent infringement or the validity of a patent are handled by these courts.

Due to the new system, the expertise of the court is increasing. In the interim phase, the case is decided by one specialist judge, assisted by technically trained judges and the main hearing is heard by two judges and two technically trained judges.

Are cases decided by one judge, a panel of judges or a jury?

There is no jury system under Swedish law. Patent cases are most often decided by one judge, assisted by a patent counsel and other technical experts. 

If jury trials do exist, what is the process for deciding whether a case should be put to a jury?

There is no jury system under Swedish law. 

What role can and do expert witnesses play in proceedings?

An expert witness is often used in patent proceedings in Sweden to clarify the technical aspects of the invention in question. An expert can be referred either by a party (which is most common) or by the court as an impartial witness. An expert referred to by one of the parties must submit a written statement to the court before the main hearing and will then be heard by both parties during the main hearing. 

Does your jurisdiction apply a doctrine of equivalents and, if so, how?

Yes. In Sweden, if an invention has a similar technical solution to a problem as that of another invention, the invention patent would be infringing. This applies even if the solution differs from the wording of the patent claim. However, the solution must be fundamentally equivalent and must lead to the same result. 

Is it possible to obtain preliminary injunctions? If so, under what circumstances?

The court can issue a preliminary injunction under the penalty of a fine if the plaintiff can demonstrate that:

  • there is probable cause that the defendant has infringed the patent;
  • it can be reasonably assessed that the value of the patent owner’s exclusive right to the patent will be diminished by the defendant's continued infringement; and
  • the material provisions for granting a preliminary injunction are fulfilled after applying the principle of proportionality.

The Patent and Market Court rarely grants ex parte preliminary injunctions. Previous case law has shown that ex parte injunctions can be granted only if a short delay in stopping the infringement would cause the plaintiff considerable irreparable damage. Normally, ex parte injunctions are ordered only:

  • where the infringement is obvious;
  • in counterfeiting cases; or
  • if they are extremely urgent to stop the infringement.

The plaintiff is required to deposit a security with the court (usually a bank guarantee) – covering the defendant’s potential losses caused by the injunction – for a preliminary injunction to be ordered.

Finally, a request for a preliminary injunction is always part of the proceedings on the merits and cannot be brought separately or independently.

How are issues around infringement and validity treated in your jurisdiction?

The handling of patent cases is Sweden is bifurcated, meaning that infringement issues and revocation issues are handled separately before the court. Consequently, the court will not consider invalidity claims under infringement proceedings and vice versa. However, both cases are often handled by the same judge and in relation to each other.

Will courts consider decisions in cases involving similar issues from other jurisdictions?

The court will not formally consider decisions from other jurisdictions. Such decisions may still be used as guidance (eg, if the issue in another jurisdiction concerned the same patent or similar acts of infringement), but they are not binding.

Damages and remedies

Can the successful party obtain costs from the losing party?

Generally, the losing party must reimburse the winning party's reasonable litigation costs, including attorneys' fees. In practice, the courts normally find that the costs incurred are reasonable or award at least the majority of the costs. However,

What are the typical remedies granted to a successful plaintiff?

The typical remedies granted to a successful plaintiff under Swedish law include:

  • injunctive relief against further infringement;
  • reasonable royalty and/or compensation for the use of the invention and, in the case of negligent or wilful infringement, damages for any additional loss caused by the infringement;
  • seizure and destruction of infringing products or other measures required to prevent further infringements, including the recall of infringing products from the market; and
  • publication of the judgment.

How are damages awards calculated? Are punitive damages available?

When damages awards are calculated, special consideration is given to the following factors according to the Patent Act:

  • the profit made by the person who committed the infringement and the damage to the reputation of the invention;
  • the patentee’s lack of profit;
  • the non-profit damage; and
  • the patentee’s interest in infringement not being committed.

However, regardless of these factors, the suffered damage is the ultimate limit for damages according to Swedish legislative history. The injured party may receive reasonable compensation for use and for further damages. The reasonable damages for use are calculated with analogy to license. The compensation for further damages is compensation to the extent that the patent owner is not sufficiently compensated for its injury within the framework of compensation for use. 

How common is it for courts to grant permanent injunctions to successful plaintiffs and under what circumstances will they do this?

If requested by the claimant, a permanent injunction normally follows a finding of infringement, except in exceptional circumstances (eg, 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 must refer to the items that are allegedly infringing. An injunction cannot be directed at an individual who has not been 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. 

Timescale and costs

How long does it take to obtain a decision at first instance and is it possible to expedite this process?

There is no fast-track system in Sweden. The period for obtaining a decision at first instance depends on the individual circumstances of the case. Cases in the Patent and Market Court are normally initiated through an application for a summons or an appeal of a decision from the Swedish Patent and Registration Office. A decision is normally delivered after the main hearing, but cases can also be determined after written processing. To obtain an interim injunction usually takes four to eight weeks from the submission of the application. To obtain a judgment usually takes 18 to 24 months; however, timings may vary depending on the complexity of the case.

How much should a litigant plan to pay to take a case through to a first-instance decision?

The cost of litigation relating to patent infringement in Sweden varies depending on the complexity of the case and whether the plaintiff has requested a preliminary injunction, but can be expected to be between €200,000 and €600,000 per party for cases of average complexity before the first-instance court. This cost will be approximately doubled if the proceedings include an invalidity action. Costs at the appellate level are usually about 60% of those of first-instance proceedings. About 40% of the total costs can be expected to be incurred during preliminary injunction proceedings. The costs of Supreme Court proceedings are similar to, or higher than, those of Court of Appeal proceedings.

Appeal

Under what circumstances will the losing party in a first-instance case be granted the right to appeal? How long does an appeal typically take?

The Patent and Market Court of Appeal is a division of Svea Court of Appeal, to which decisions and judgments delivered by the Patent and Market Court can be appealed. The Patent and Market Court of Appeal must grant leave to appeal before the examination of the appealed case. If there is an interest of precedent, the court can grant leave for a decision or judgment to be appealed to the Supreme Court.

In most cases the appeal court must grant leave to appeal before conducting a more complex examination of the case in question. As stated above, many cases are also delivered after the main hearing, but written processing is also common.

As a main rule, Patent and Market Court of Appeal judgments cannot be appealed (apart from judgments in criminal cases). However, in some cases the court may grant leave to appeal to the Supreme Court. In these cases, the Supreme Court must grant leave to appeal before further examination of the case in question. 

Options away from court

Are there other dispute resolution options open to parties that believe their patents to be infringed outside the courts?

The parties can turn to and use mediators to settle disputes outside the courts. The Lisbon International Mediation Institute (IMI) is a non-profit organisation with an international vision and mission for mediation and has established mediation standards on a global scale. The IMI is not a service provider but has set a certain competency standard for quality professionals who have the skills to assist parties resolving disputes. Parties can search for IMI-certified mediators and certified mediation advocates on the IMI website. The standards set by the IMI mean that parties around the world can find professionals who are objectively certified, rather than seeking out professionals through unreliable methods, such as word of mouth or personal advertisements.