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Applying for a patent

Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability are as follows (Sections 1 and 2 of the Patents Act):

  • The patentable object must be an invention susceptible of industrial application;
  • The patentable object must be new in relation to the state of the art when the patent application is filed; and
  • The patentable object must fundamentally differ from the state of the art.

The requirement of novelty (ie, that the patentable object must be new in relation to the state of the art) is to be understood as a test of objective, global novelty, which means that there are no limitations in terms of time, geography or language when comparing the patentable object with the state of the art.

That the patentable object must differ fundamentally from the state of the art means that the patentable object compared to the state of the art is not obvious to a person skilled in the art.

What are the limits on patentability?

According to Section 1(2) of the Patents Act, the following subject matters and activities are not regarded as inventions and are thus not patentable:

  • discoveries, scientific theories and mathematical methods;
  • aesthetic creations;
  • schemes, rules or methods for performing mental acts, playing games or doing business;
  • computer programs; and
  • presentations of information.

Further, according to Sections 1(3-6), 1a(1-2) and 1b(1-3) of the Patents Act, the following categories of subject matters are not considered patentable:

  • methods of treatment for humans or animals by surgery or therapy or diagnostic methods practised therein;
  • particular plant or animal varieties;
  • essentially biological processes for the production of plants or animals;
  • the human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequences or partial sequence of a gene; and
  • inventions whose commercial exploitation would be contrary to public order or morality, including – but not limited to – processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes and processes for modifying the genetic identity of animals that are likely to cause suffering without any substantial medical benefit to man or animal.

To what extent can inventions covering software be patented?

In general, software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect that goes beyond the normal physical interactions between the program and the computer.

To what extent can inventions covering business methods be patented?

In general, business methods as such are not patentable (Section 1(2) of the Patents Act). That said, business methods can be patented as part of a patent whose subject matter is a process. However, jurisprudence shows that it is difficult to invent business methods that essentially differ from known methods, which is why patents are rarely granted for business methods.

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

Stem cells that have an inherent ability to create human life (so-called ‘totipotent stem cells’) cannot be patented, whereas pluripotent and multipotent stem cells can be patented, as they cannot create human life.

Are there restrictions on any other kinds of invention?

Discoveries, scientific theories, mathematical methods and methods of treatment for humans or animals by surgery or therapy cannot be patented (Sections 1 and 1b of the Patents Act).

Grace period

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

According to Section 2(6) of the Patents Act, patents may be granted for inventions even if the invention is already available to the public, provided that it was made publicly available within six months of the filing of the application because:

  • of an evident abuse in relation to the applicant or its legal predecessor; or
  • the applicant or its legal predecessor displayed the invention at an official, or officially recognised, international exhibition falling within the terms of the 1928 Paris Convention on International Exhibitions.

Oppositions

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

According to Section 21 of the Patents Act, anyone can file an opposition with the Patent and Trademark Office against a granted patent. The opposition must include the grounds on which the challenge is based and must be submitted to the Patent and Trademark Office within nine months of publication of the grant of the patent. A prescribed fee must be paid to submit an opposition. An opposition may be based only on the grounds that the patent has been granted irrespective of the fact that:

  • the requirements of Sections 1 and 2 of the Patents Act (see patentability criteria above) are not complied with;
  • it relates to an invention that is not disclosed in a manner sufficiently clear to enable a person skilled in the art to carry out the invention on the basis of the description; or
  • its subject-matter extends beyond the contents of the application as filed.  

The Patent and Trademark Office advertises the filing of an opposition.  

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

Before grant of a patent, it is possible to file a third-party observation by submitting certain documents to the patent examiner. Third-party observations may concern all parts of patentability of the patent application in question.

How can patent office decisions be appealed in your jurisdiction?

Applicants can appeal final Patent and Trademark Office decisions regarding a patent application before the Board of Appeal for Patents and Trademarks.

A patentee may appeal before the Board of Appeal for Patents and Trademarks when a patent has been revoked or if the Patent and Trademark Office finds that the patent may be maintained in an amended (restricted) form following an opposition.

An opponent may appeal before the Board of Appeal for Patents and Trademarks when a patent is maintained or if the Patent and Trademark Office finds that the patent may be maintained in an amended (restricted) form despite a duly filed opposition. If the opponent withdraws the appeal, the appeal may nevertheless be examined, as required.

Appeals must be filed with the Board of Appeal for Patents and Trademarks no later than two months after the date on which the Patent and Trademark Office notified the party concerned of its decision. The fee prescribed must be paid within the same time limit and failure to do so will result in the appeal being rejected.

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 processing times and costs connected with filing a patent application depends on the technical nature of the invention. The first action from the Patent and Trademark Office is usually issued within six months of filing the application. It is possible to request expedited processing. In such cases, the first technical action will be issued within three months. The costs connected with a patent application start at DKK3,000 for 10 claims, which covers filing, search and examination. Additional claims cost DKK300 per claim.

However, the majority of patents granted with effect in Denmark are European patents. In order to take effect in Denmark, a European patent must be validated in Denmark within three months of the date on which the patent was granted in Europe by the European Patent Office.

Enforcement through the courts

Strategy

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

The general Danish procedural rules in the Administration of Justice Act, together with certain provisions in the Patents Act, regulate the civil procedure for claims for patent infringements, invalidation and declaratory actions.

Proceedings for such claims are instigated at the Maritime and Commercial High Court, which serves as the first-instance patent court in Denmark. Verdicts from the Maritime and Commercial High Court can be appealed to either the high courts of Eastern or Western Denmark or, in rare circumstances, the Supreme Court.

The swiftest way to enforce a patent right against a potential infringer is by submitting a request for a preliminary injunction at the Maritime and Commercial High Court. Preliminary injunctions are in essence the patent owner’s primary remedy, as they function as an effective and fast way of stopping infringing acts. Once a preliminary injunction is granted, it must be followed up by main proceedings in order to verify the preliminary injunction with a permanent injunction.

What scope is there for forum selection?

Forum shopping is not a widely used concept, as Denmark is a small jurisdiction and its IP expertise is accumulated at the Maritime and Commercial High Court.

The Maritime and Commercial High Court is the first-instance court for patent cases. While it is possible to instigate a patent case at a city court, if either party requests the case to be transferred to the Maritime and Commercial High Court, the city court must do so.

Pre-trial

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

Court proceedings are instigated when the plaintiff submits a writ of summons to the court. The court gives the defendant a certain period (normally four weeks) to submit a statement of defence. Subsequently, the parties participate in a preparatory court meeting (often via telephone) with the court to outline the process leading up to trial.

In patent cases, court-appointed experts normally provide statements regarding validity or infringement questions.

Subsequent to these expert statements, the parties may, and normally do, exchange further pleadings with the court.

Depending on the complexity of the case, oral hearings usually take place 18 to 36 months from the date on which the writ of summons was filed.

In Danish patent cases, the general principle of free evaluation of evidence applies. The plaintiff must provide evidence for its claims (eg, regarding the patent infringement or patent invalidity). If evidence for the claims is likely to be destroyed, a procedure securing such evidence or parts thereof can be applied on request from a party. Technical evidence may be produced by submitting technical literature, but the actual technical evidence is produced by way of statements from court-appointed experts.

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

According to the Administration of Justice Act, the parties and the court must process the court case as swiftly as possible without unnecessary delays. The courts are well aware of this obligation and fully attempt to speed up the litigation process as required. Hence, it is difficult for defendants to delay proceedings. Further, Danish courts can jointly rule on issues of validity and infringement.

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?

Invalidation proceedings can be instigated before the Maritime and Commercial High Court by anyone with a legal interest in the proceedings. This also applies to declaratory proceedings.

At trial

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

As a general rule, two technical judges and one legally trained judge (the president) participate in court cases at the Maritime and Commercial High Court. Hence, a patent owner can expect both high-level technical and judicial expertise.

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

As a starting point, two technical judges and one legally trained judge (the president) participate in court cases at the Maritime and Commercial High Court. In cases of a particular complex or fundamental nature, two additional technical or legally trained judges may participate, if the Maritime and Commercial High Court decides so.

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

Jury trials do not exist in patent litigation.

What role can and do expert witnesses play in proceedings?

 In patent cases, court-appointed experts usually provide statements regarding the validity or infringement questions at hand. Normally, these expert statements play a substantial role in the court’s adjudication of the case. Expert witnesses summoned by only one of the parties are generally not allowed to be heard, except in the case of preliminary injunctions. As of July 1 2017, new rules regarding court appointed experts, as well as a possibility to use experts appointed by each party, have entered into force. These rules generally allow for experts to play an even bigger part in litigation.

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

Yes, to some extent. According to Section 39 of the Patents Act, the “extent of the protection conferred by a patent shall be determined by the claims. For the interpretation of the claims, the description may serve as a guideline”.

However, case law from the Supreme Court confirms the principle of non-literal equivalents, meaning that a party can be held liable for patent infringement even though the infringing device, process, etc, does not fall within the literal scope of claims, if it is equivalent to the claimed invention.

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

Yes – preliminary injunctions can be granted by virtue of Chapter 40 of the Administration of Justice Act. Preliminary injunctions can be obtained before or during the main proceedings.

The three fundamental requirements for the grant of a preliminary injunction are that the patentee proves or renders probable that:

  • it has a valid patent and that the patent is being infringed;
  • the infringer’s behaviour makes it necessary to grant a preliminary injunction; and
  • the possibility to enforce its patent will be lost if it has to wait for the court’s decision under ordinary court proceedings.

That the infringer's behaviour makes it necessary to grant a preliminary injunction means that the patentee shall be able to specify circumstances proving or rendering it probable that an infringement either has taken place or is imminent.

Preliminary injunctions are often granted on the condition that the patentee provides a security (often a bank guarantee) to cover the estimated damages that the alleged infringer would suffer if the preliminary injunction were erroneously granted. However, the court will not demand a security as a condition for the preliminary injunction, if the patentee has proved (and not merely rendered probable) the entire lawfulness of the preliminary injunction.

The court will not grant a preliminary injunction if the injunction with regard to the specific circumstances of the case is considered a disproportionate legal remedy. The courts rarely apply this rule, though, and the preparatory works to the Administration of Justice Act stipulate that this rule of exemption shall not be applied unless there is a significant difference between the patentee's interest in a preliminary injunction and the possible harmful consequences of the defendant.

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

 Danish courts – including courts in preliminary injunction cases – will normally hear arguments and rule on the issues of both validity and infringement jointly.

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

In cases involving similar patent-related issues, the Danish courts will consider decisions from other Nordic countries (Sweden, Norway and Finland), as the patent legislation in these countries is somewhat uniform. Administrative practice from the European Patent Office (EPO) and decisions from countries covered by the EPO are increasingly being considered (eg, most recently in a decision by the Eastern High Court of Denmark as of April 2017). While parties often include case law from other European countries, it is difficult to assess the extent to which this makes an impression on the Danish courts.

Damages and remedies

Can the successful party obtain costs from the losing party?

As a general rule, the losing party must reimburse the winning party for legal fees and court fees. However, the amount awarded for legal fees is decided at the court’s discretion. These discretionary amounts are substantially lower than the costs actually spent on legal fees by the winning party.

What are the typical remedies granted to a successful plaintiff?

Typical remedies include injunctive relief against the infringing actions (followed by an order against the unsuccessful defendant to withdraw the infringing products) and damages (if any losses are claimed and sufficiently documented).

How are damages awards calculated? Are punitive damages available?

For intentional or negligent infringements, the infringer must pay reasonable compensation for use of the invention, as well as damages for any other damage caused by the infringement(s).

For non-intentional and non-negligent infringements, the infringer must pay compensation only for the use of the invention if, and to the extent that, this is considered reasonable.

Denmark has no provisions regarding punitive damages. Consequently, the Danish courts grant damages for infringements relatively conservatively.

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

 On the patentee’s request, the court will order, as a remedy for direct and indirect infringements, a final injunction prohibiting the continuation or recurrence of infringement of the right afforded by the patent in question. If the plaintiff provides sufficient evidence to establish infringement, the court usually grants a permanent injunction. In this context, ‘permanent’ means for as long as the patent in question is in force.

Timescale and costs

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

 This depends on the complexity of the case. Generally, it takes approximately six to 12 months to obtain a first-instance decision in normal court cases, whereas it takes approximately three to nine months in preliminary injunction cases.

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

The cost of litigation depends on the complexity of the case. A first-instance case will cost approximately DKK500,000 for simple cases and between DKK3 million and DKK4 million for more complex pharmaceutical cases.

Preliminary injunction cases typically incur an additional DKK300,000 for simple cases and DKK1.5 million for more complex pharmaceutical cases.

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 Danish legal system is based on the so-called ‘two-instance principle’, which means that either party generally has the option of appealing the decision of one court to a higher instance.

A first-instance judgment from the Maritime and Commercial High Court may be appealed to the High Courts of Eastern or Western Denmark or, under very special circumstances, the Supreme Court.

All aspects of the first-instance judgment may be part of the appeal (eg, questions or issues regarding matters of law and evidence).

An appeal case before the High Courts of Eastern or Western Denmark normally takes one to two years.

Options outside court

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

Parties involved in a patent dispute can – as an alternative to litigation in court – settle the case by arbitration or mediation. The Danish courts offer court-based mediation, but there is no specialised arbitration system for patent disputes in Denmark.