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 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.

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