The Patent Litigation Law Review: Sweden

Overview

Sweden is consistently ranked as one of the most innovative countries in the world, which together with its traditionally strong high-tech and pharmaceutical industry, has made it a frequent venue for large patent litigation, despite being a relatively small market. Patent litigation has long been the domain of specialised courts comprising a panel of legal and technical judges. This specialisation was strengthened by a reform in 2016 that created specialised IP courts for all IP rights. Pharma-related cases are by far the most common patent cases in Sweden.

Types of patent

There are two kinds of patents that have effect in Sweden. The first is Swedish national patents, which are prosecuted at the Swedish Intellectual Property Office (SIPO) and the second is European patents that designate Sweden, which are prosecuted at the European Patent Office (EPO) and subsequently validated in Sweden. The granting of national patents and European patents is preceded by examination at the respective patent office.

In Sweden there is no possibility of extending the term of a patent per se. However, supplementary protection certificates (SPC) may be granted for patents covering medicinal, veterinary medicinal and plant protection products. An SPC extends the protection for such a product for a maximum of five years after the lapse of the basic patent. The grant of an SPC is subject to several conditions.

Procedure in patent enforcement and invalidity actions

In Sweden, essentially all patent-related disputes fall under the exclusive jurisdiction of the Patent and Market Court (PMC), which is a specialised IP court at Stockholm District Court. The PMC administers both litigation in civil disputes, such as infringement and validity cases, prosecution matters on appeal from the SIPO and criminal cases relating to IP infringement.

All licensees have standing to bring infringement proceedings.2 Anyone who is prejudiced by a patent has standing to bring revocation proceedings.3 However, if the revocation request is based on the patent being granted to someone who is not the inventor and who has not acquired his or her right to the invention from the inventor, standing is restricted to those who assert the right of ownership.4 There is a requirement for a litigation bond to be provided by foreign claimants, but many nationalities are exempt from this requirement.5

There are pre-litigation notification requirements, of which a claimant must be aware. Anyone who intends to bring proceedings for the revocation of a patent must give the SIPO, and all parties recorded in the patent register as licensees and pledge holders in respect of the patent, notice of the intention to do so.6 A licensee who wishes to initiate infringement proceedings must first notify the patentee.7 Failure to comply with a notification requirement bars the proceedings from progressing but the court will give the claimant the opportunity to remedy any omission in this respect.8 It is common practice to send a warning letter before bringing proceedings.9 Warning letters can in very particular circumstances give rise to liability under marketing law but the premise is that such letters are a natural element of a dispute.

Both infringement and revocation proceedings are initiated by the filing of a summons application.10 A summons application must, among other things, specify the relief that the claimant seeks from the court.11 The requirement for a specified statement of the relief sought means that a claimant who seeks monetary relief must state the amount in which such relief is sought already from the outset.12 If the claimant is unable to specify that amount at this stage, it is possible to instead seek a declaration of liability, per se, for patent infringement.13

The respondent will normally be given between two and four weeks to respond to the summons application, depending on whether preliminary relief is sought or not. Extensions of deadlines fixed by the court may be granted upon a reasoned application.14 A respondent in validity proceedings may request that the patent is maintained with a more limited scope of protection and must in that case file amended claims.15

Preliminary injunctions may be sought from the court.16 The preliminary injunction available under the Patents Act is sought in the scope of full merits proceedings. In order to seek such relief, the claimant must thus bring infringement proceedings and request that the injunction sought be granted also in the interim. It is possible to obtain preliminary injunctions on an ex parte basis, but it requires extreme urgency and are rarely granted. It is not possible to file protective letters with the court to mitigate risk for ex parte decisions. The grant of a preliminary injunction requires that the claimant can show probable cause of infringement of a valid patent.17 There is a rebuttable presumption of validity for the purposes of preliminary injunction requests.18 The claimant must also file a bond or other appropriate form of security in an amount covering the financial harm that the preliminary injunction may cause the respondent in the event the respondent prevails on the merits.19 Preliminary relief, such as seizure or injunctive relief, is also available under the Procedural Code and that may be sought in advance of bringing full merits proceedings.20

While the court has the power to hold hearings on procedural issues, to which requests for preliminary injunction belong, it will rule on such requests based on the documents on the case file. The reason being that such request shall be ruled upon in an expedited manner. The time from the application to the ruling is normally between a few weeks up to six months, depending largely on the urgency of the matter and number of submissions the parties file on the issue.

A respondent in infringement proceedings may enter a validity defence. However, that defence will be inadmissible unless the respondent also brings separate proceedings for the revocation of the patent in suit.21 If a validity defence is argued, the court will order the respondent to initiate revocation proceedings within a time certain if the respondent wishes to maintain that defence.22 While revocation proceedings are separate from the infringement proceedings, they are normally consolidated and heard together.

At an appropriate stage of the proceedings, the court will hold a case management hearing.23 The purpose of that hearing is to identify any unclarities in the parties' positions and to set a schedule for the subsequent proceedings including the main hearing. A filing schedule will be fixed. The court will also endeavour to fix the length of the hearing by inquiring about the number of witnesses. A merits hearing can ideally be expected around 18 months after the start of the proceedings but that varies from case to case. The court is also required by law to explore whether there is a possibility of settling the dispute amicably, an issue normally discussed at the case management hearing.24

While the court expects the parties to abide by the schedule so determined, there are few sanctions for not doing so. The parties may, for example, adduce additional evidence after the final statement of evidence. The court will normally declare the case file closed by a specific date. After that date, new facts and evidence will be inadmissible unless there is a valid excuse for introducing it at this late stage or if allowing the new facts and evidence will not substantially delay the proceedings.25 A more stringent cut-off order may be entered against a party who fails to bring enough clarity to its case.26 Such orders are rare and normally reserved for more recalcitrant litigants.

The proceedings are adversarial and with few exceptions there is no inquisitorial aspect of the court's function. It is for the parties to adduce evidence.27 Witnesses of fact and expert witnesses shall be named in the parties' written submissions together with an indication of what the party intends to prove with the testimony of the witness or expert.28 Written witness statements from a witness of fact are normally not admissible in Swedish proceedings.29 One exception from that rule is that it is permissible to rely on such written statements for the purposes of a preliminary injunction request.30 The general rule for expert witnesses is the direct opposite and a party who wishes to rely on expert testimony must thus submit an expert report.31

Witnesses of fact and expert witnesses give testimony at the hearing.32 The parties hold an examination-in-chief of their respective witnesses and experts and the other party is entitled to a cross-examination. The court may ask questions but will normally only do so to make sure it has correctly understood the testimony.33

Both parties may request document production.34 Unlike in some jurisdictions with more general rules on disclosure or discovery, document production is sought in respect of specific, identified documents.35 However, describing a category of documents or even an issue, for which the documents sought would be relevant, may be sufficient identification.36 There is a privilege for trade secrets.37 Production of documents containing trade secret information can nevertheless be ordered, but only if there are exceptional grounds for doing so.38 Determining whether there are exceptional grounds involves, among other things, an appraisal of how strong the requesting party's case is on the merits.39

An infringement investigation order, which may also be sought separately, before initiation of proceedings and granted ex parte, can be used to secure evidence about infringement by searching for objects and documents.40 An order of this kind may be granted if the claimant can establish that there are reasonable grounds to assume that the party against whom the order is sought has committed an infringing act or contributed to such an act and the claimant provides a bond. The enforcement authority, which carries out the investigation, may photograph and record audio and video of such objects that it is instructed to search for in the order and may make copies of documents covered by the order. The authority may not seize specimens of infringing products or observe processes. The documentation so obtained shall be made available to the parties.

An information order may be granted if the claimant is able to establish probable cause for infringement or contribution to infringement.41 The subject matter of the order is information about the origins and distribution network of infringing goods or services, information on the number of sold products and products in stock as well as prices and gross margins.42

Infringement and revocation proceedings are not barred by ongoing opposition proceedings before the SIPO or the EPO and the courts are normally reluctant to stay court proceedings pending the outcome of such administrative procedures unless both parties agree on the stay.

The court's judgment will normally be preceded by a merits hearing. At that hearing and the subsequent deliberations, the court will sit as a panel, normally composed of two legal and two technical judges.43 At the hearing, the parties will each give an opening statement intended to present the facts and written evidence to the court.44 This will be followed by the examination of witnesses and experts and the hearing will conclude with closing statements.45

The court will deliver a written judgment between three weeks and a few months after the hearing. Costs will be awarded in the judgment and the general rule is that the prevailing party will be compensated for its litigation costs, insofar as they are deemed reasonably motivated to protect the party's interests.46 The rules on litigation costs give the courts power to impose sanctions for negligent conduct of proceedings or the bringing of unnecessary proceedings by making the responsible party liable regardless of the outcome or even holding the parties' directors or counsel jointly and severally liable for costs.47 However, those powers are rarely used.

Substantive law

i Infringement

For there to be infringement, there must be a use of the invention claimed by a patent and that use must be such that it falls within the scope of the exclusive right conferred by the patent. The first issue is thus to establish the scope of protection of a patent and determine whether the infringement object falls within said scope. If so, it remains to determine whether any measures falling within the exclusive right have been taken with respect to that object.

Scope of protection

There is a use of the patented invention if a product or process corresponds to all elements of a patent claim either literally or, exceptionally, by equivalent means. The scope of protection is determined by the patent claims and the description may be consulted to inform the understanding of the claim.48

The Swedish courts shall observe Article 69 of the European Patent Convention and the Protocol on the Interpretation of Article 69.49 That means in essence that the courts shall endeavour to find a construction that strikes a balance between a strict literal reading of the claim and a more liberal description-oriented construction, and accordingly combines a fair protection for the patent proprietor with a reasonable degree of legal certainty for third parties. The scope of protection shall furthermore be determined in light of the inventive idea, as it is conveyed by the patent, and with reference to that which was known in the art on the application (or earlier priority date).50

Reference may also be taken to the prosecution file when construing ambiguities in the claim, but only to limit the scope of protection.51

As regards the application of the doctrine of equivalence, it does not mean that the issue of infringement should be determined without regard to the patent claims. All elements of the invention need to be present, either literally or by equivalent means. If there is a discrepancy between the patent claim and the object of the infringement insofar as one or more features is concerned, an equivalency test will determine whether there can be infringement this notwithstanding.52

The test examines whether the object of the infringement uses the inventive idea entirely, that it – regardless of the literal discrepancy between the object of the infringement and the patent claim – achieves the same technical result as the invention and that the discrepancies are close at hand for a person skilled in the art and that the solution used by the object of the infringement is equivalent with that claimed. The nature of the invention is also relevant as the room for extended protection based on equivalence might be substantial for a pioneering invention, whereas it will be very limited for a more ordinary invention.

Acts of infringement

Infringement may be direct or indirect. Direct infringement is the making, offer for sale, putting on the market or use of a patented product as well as importing to Sweden or the stocking in Sweden of such product for any the mentioned purposes.53 It is also direct infringement if any of these acts are undertaken in respect of a product directly obtained from a patented process. Lastly, the use of a patented process is direct infringement and so 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 consent of the patentee.

Indirect infringement is the supply or offer in Sweden of means, relating to an essential element of the invention, for putting the invention into effect in Sweden, with the knowledge, or if it is obvious in the circumstances, that the means are suitable and intended for putting the invention into effect.

Only acts that are made in Sweden can infringe a Swedish patent. However, a transaction can have an international dimension and still infringe a Swedish patent. The courts have considered that an offer issued from Sweden by a company incorporated in Sweden to a buyer in Finland was an infringing act in respect of a Swedish patent regardless of the fact that the goods so offered were delivered directly from the UK to Finland.54

Non-commercial acts are exempt from patent infringement liability but the supply or offer of means to a non-commercial party will still be indirect infringement notwithstanding that the putting into effect of the invention is exempt.

Assisting or otherwise furthering direct or indirect infringement by deed or advice (contribution) is also a cause of action.55

Furthermore, imminent infringement (i.e., if someone is taking preparatory steps for an act of infringement) can be injuncted. The challenge in this context is often to establish that the intention with the steps was to carry out the infringing act notwithstanding the existing patent protection.56

ii Invalidity and other defences

Invalidity

A respondent who wishes to rely on invalidity as a defence in the infringement proceedings must also bring separate revocation proceedings against the patentee. It is thus not possible to rule on validity with effect solely between the parties.

A patent shall be invalidated by the courts if any of the following conditions are met:57

  1. the patent has been granted notwithstanding that the requirements for patentability set out in the Patents Act were not met;
  2. the invention is not described so clearly as to enable a person skilled in the art to carry out the invention;
  3. the patent covers a subject matter that did not appear from the application on the date it was filed; or
  4. the scope of protection of the patent has been extended after grant.

The first item in the list above incorporates lack of novelty and obviousness but also other aspects of patentability. Thus, the patent is invalid if the subject matter does not qualify as an invention, belongs to a non-patentable category, lacks technical effect or industrial application.

Novelty is examined by establishing the contents of the relevant prior art and then comparing it with the patent in suit to find whether the prior art anticipates all features of the invention claimed by the patent.58

In determining whether an invention was obvious on the application date, the courts apply the problem-and-solution approach. This means that it is established what distinguishes the invention claimed by the patent from the closest prior art and the technical effect of those distinguishing features is used to formulate an objective technical problem. It is then examined whether a notional person skilled in the art would arrive at the invention when solving that problem.59

The common general knowledge of the person skilled in the art (CGK) is important when determining novelty and obviousness as the skilled person's understanding of prior art and the teaching of the patent, his or her capacity to solve the objective technical problem and various other issues are influenced by the CGK.60

A claim to priority can be challenged in the context of novelty and obviousness by arguing that the invention claimed by the patent is not directly and unambiguously disclosed in the priority application or that the priority cannot be claimed based on that application for other reasons.

Failure to provide an enabling disclosure is a ground for invalidity. The CGK is of great importance in determining whether the disclosure is sufficient.61 For a patentee, this may present a dilemma as a great deal of reliance on CGK for enablement may be a problem in respect of obviousness, and vice versa.

A patent is moreover invalid if it comprises added subject matter. Such added matter arises from amendments made during prosecution and the test is whether information has been introduced in the patent claim that the person skilled in the art, guided by his or her CGK, could not directly and unambiguously gather from the application on the filing date.62

The fourth ground for invalidity relates to post-grant amendments of the claims, which results in a wider scope of protection.

Other defences

Non-infringement

The non-infringement argument is usually the first line of defence and may be challenging for a patentee to overcome as the burden of proof for infringement rests on the claimant.

Laches/estoppel and limitation.

Claims for damages are time-barred if proceedings are not initiated within five years from the time when damage occurred, but there is an exception applying in connection with grant and opposition proceedings.63 Apart from this general time-bar, there is no duty for a patentee to act on infringement and an infringer cannot defend itself by invoking a failure of the patentee to act on a known infringement.64 However, there is always a possibility to invoke communications between the patentee and the infringer to construe a contractual defence involving the patentee's acceptance of certain otherwise infringing acts or waiver of claims.

License and exhaustion

If the patentee has consented to the use of the invention by way of a licence (express or implied) that use will not be infringing.65 However, a licence only gives the licensee the right to use the invention within its scope.

The patent right is exhausted in a specimen of a patented product that has been put on the market in the European Economic Area (EEA) by the patentee or with the consent of the patentee.66 The exhaustion is regional, and it is accordingly infringement to import a specimen put on the market outside of the EEA to Sweden.

Prior use right

Anyone who used the invention commercially in Sweden or has undertaken essential measures to use the invention commercially in Sweden, when the patent application was filed, has a prior use right.67 The right is limited to the general nature of the use at the application date.

The Bolar exemption and other exemptions

Sweden has implemented a Bolar exemption that allows studies, trials, investigations and other practical measures with a reference medicinal product, if those uses of an invention relating to the reference medicinal product are necessary to obtain marketing authorisation of a medicinal product.68

There is also an exemption for use of the invention in experiments carried out on the invention as such. The preparation of medicinal products at pharmacies pursuant to a doctor's prescription in individual cases and subsequent measures in respect of such medicinal products are exempt from infringement. Private and non-commercial uses of an invention are also exempt.

Competition law

The enforcement of patent rights by a dominant undertaking may, in specific circumstances, be an abuse of the dominant position. It is clear from the Court of Justice of the European Union's preliminary ruling in case C-170/13 (Huawei Technologies) that seeking injunctive relief against infringement of a standard-essential patent may amount to abuse if conditions relating to the offer of a fair, reasonable and non-discriminatory (FRAND) licence have not been observed before seeking injunctive relief. It also follows from the ruling that damages for infringement are not generally abusive. The ruling pertains to EU law, which is directly applicable in Sweden. The Swedish courts are yet to rule on any FRAND cases.

Final remedies for infringement

Injunctive relief is a remedy for infringement. Intent or negligence is not a prerequisite for the grant of such relief and the right to an injunction is essentially absolute. Injunctions are granted on pain of an administrative fine.69 The injunction will be limited to the object of the infringement, typically identified by a specific exhibit to the judgment that demonstrates the properties of the object in question.

Corrective measures can also be sought against a patented product that has been made without the consent of the patentee.70 Measures that the courts are empowered to order include the recall from the market, modification, storage for the rest of the patent term or destruction of such products. The court may also order such other measures that it considers appropriate, which, for example, could be the transfer of infringing products to the claimant. It will normally be for respondent to disburse any costs associated with the corrective measures and it cannot be ordered that the party who has suffered infringement shall compensate the party against whom the measure is directed. The court may also order anyone who has infringed a patent or contributed to infringement to fund appropriate measures to publicise information about the court's judgment.71

A patentee is entitled to reasonable compensation for the use of the invention and any further losses caused by the infringement provided that the infringement was intentional or negligent.72 The reasonable compensation is normally determined based on what would be a reasonable licence fee for a voluntary licence.73 The additional damages normally consists of profit on sales lost because of the infringement.

The Patent Act lists several factors to be considered when determining the quantum of damages. Those factors include both financial and non-financial aspects. The purpose of these factors is not to compensate the patentee in excess of the actual financial harm it has suffered.74

Commercial parties are expected to advise themselves of patents pertaining to their field of operations. A respondent can thus not normally defend itself by citing a lack of knowledge of patent and negligence will accordingly follow from either the failure to respect a patent or the failure to comply with the duty to be aware of the patent right. However, in case of infringement in good faith, the patentee is entitled to reasonable compensation only if and to the extent equitable.

The most notable award of damages in Swedish patent litigation, at least in recent years was a judgment for approximately 200 million Swedish kronor in lost profit given in 2017.75 However, that judgment was overturned on a finding of invalidity by the Patent and Market Court of Appeal (PMCA).76

Other types of patent proceeding

There are several types of patent proceedings other than infringement and revocation, as discussed in the following.

i Declaratory proceedings

Declaratory relief in respect of infringement or non-infringement may be awarded.77 The parties with standing are essentially the same as for infringement and invalidity. It is not possible to seek declarations to the effect that a specific product was known or obvious before the application (or priority) date of a patent.

ii Criminal law

Intentional or grossly negligent patent infringement is a crime punishable by a fine or a prison sentence of maximum two years.78 There is an aggravated crime that carries a prison sentence of between six months and six years. Public prosecutors may indict patent crimes on certain conditions. No such indictment has been brought since the entry into effect of the Patents Act on 1 January 1968.79 The victim of a crime has a subsidiary right to bring indictments before the court and such indictments have been brought in respect of patent infringement from time to time but it is very rare.80

iii Border measures

Patents are covered by Regulation No. 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning customs enforcement of intellectual property rights and repealing Council Regulation No. 1383/2003 and a right holder may apply to the customs authorities to enable them to make customs seizures in respect of a specific patent.

iv Compulsory licence

Compulsory licences may be granted on a number of grounds such as failure to exploit the invention, dependent invention and pressing public need.81 For each case, the grant of a compulsory licence is subject to several conditions and the party seeking the licence must prove that it first has sought a voluntary licence from the patentee.82 The covid-19 pandemic has led to one – still pending – request for a compulsory licence in relation to a patent in the field of biotechnology.

v Entitlement – invalidity or transfer of ownership to patent

If a patent has been granted to someone who was not entitled to the patent because of lack of inventorship (i.e., not being the true inventor or his or her successor in right), the true owner may bring an entitlement action requesting that ownership of the patent be transferred.83 Such an action can also pertain to partial ownership with the patentee. An entitlement action for transfer of ownership must be brought no later than one year from the date when the claimant became aware of the patent grant and the other facts on which the claim is based. If the patentee was unaware of the inventorship issue and did not have reason to be aware of it, no action can be brought later than three years after the patent grant.

The entitlement ground may also be entered as a ground for invalidity. However, a patent may not be revoked based on the proprietor being entitled only to a share in the patent.

Appeal

The PMC's judgment, as well as some other rulings made during the proceedings there, may be appealed to PMCA, which is part of Svea Court of Appeal in Stockholm. There are special conditions that need to be met for an appeal to be heard at the appellate level. Patent cases will normally meet those conditions. The case before the appeals court entails a complete re-examination of the case, insofar as it is within the scope of the appeal. No new facts or evidence is admissible at the appellate level, but there are exceptions. The PMCA will normally sit as a panel consisting of three legal and two technical judges.

The judgment of the PMCA may only be appealed to the Supreme Court if the PMCA gives leave to appeal, which it very rarely does. Even if appeal is permitted, the Supreme Court must decide to hear the appeal, which it only does if the case involves a legal issue for which precedent is needed.

The year in review

Several noteworthy cases have been heard by the Patent and Market Court of Appeal. Two interesting rulings dealt with the availability of SPC protection, one of which has been referred to the Court of Justice of the European Union (CJEU).84 For infringement, judgments have dealt with burden of proof and other such issues.85 One interesting judgment on validity discusses, among other things, whether the patent makes the technical effect plausible and whether the objective technical problem should be reformulated.86

Outlook

While it is still unclear what the full effect of the covid-19 pandemic will be on the IP courts' work, there are several interesting patent cases expected to be heard within the next year. Cases worthy of mention in this regard include jurisdictional issues related to pan-European relief as well as the above-mentioned case pertaining to the request of a compulsory licence, which is a rarely litigated issue.

The fate of the Unified Patent Court remains a much-discussed issue in Sweden, particularly in light of the German Constitutional Court's judgment annulling the German law ratifying the Agreement on a Unified Patent Court.

Footnotes

Footnotes

1 Björn Rundblom Andersson is a partner and Petter Larsson is an associate at Westerberg & Partners Advokatbyrå AB.

2 See, for example, Section 57b of the Patents Act.

3 Section 52 of the Patents Act.

4 ibid.

5 The Obligation for Foreign Claimants to Provide Security for Litigation Costs Act (1980:307).

6 Section 64 of the Patents Act.

7 ibid.

8 ibid.

9 Members of the Swedish bar organisation are as a main rule required under the bar's code of professional conduct to send warning letters before initiating legal proceedings.

10 Chapter 13, Section 4 of the Procedural Code.

11 Chapter 42, Section 2 of the Procedural Code.

12 Ekelöf, et al., Rättegång V, Juno v. 5, p. 26.

13 Declarations may be sought under Chapter 13, Section 2 of the Procedural Code.

14 Chapter 32, Section 3 of the Procedural Code.

15 Section 52 of the Patents Act.

16 Section 57b of the Patents Act, which is the provision governing all aspects of a request preliminary injunction.

17 ibid.

18 See, for example, the Patent and Market Court of Appeal's ruling on 29 June 2018 in case PMÖ 4865-18.

19 Section 57b of the Patents Act.

20 Chapter 15 of the Procedural Code.

21 Section 61 of the Patents Act.

22 ibid.

23 Chapter 42, Section 12 of the Procedural Code.

24 Chapter 42, Section 17 of the Procedural Code.

25 Chapter 42, Section 15a of the Procedural Code.

26 Chapter 42, Section 15 of the Procedural Code.

27 Chapter 35, Section 6 of the Procedural Code.

28 Chapter 42, Section 8 of the Procedural Code.

29 Chapter 35, Section 14 of the Procedural Code.

30 AD 1982 No 28.

31 Chapter 40, Sections 7 and 19 of the Procedural Code.

32 Chapter 35, Section 8 and Chapter 36, Section 16 of the Procedural Code.

33 Chapter 36, Section 17 of the Procedural Code.

34 Chapter 38, Section 2 of the Procedural Code.

35 See, for example, the Supreme Court's decision in NJA 1998 p. 590.

36 ibid.

37 Chapter 38, Section 2 and Chapter 36, Section 6 of the Procedural Code.

38 ibid.

39 The Supreme Court, NJA 1986 p. 398.

40 Sections 59a–59h of the Patents Act, which governs all aspect discussed in this paragraph.

41 Sections 57c–57f of the Patents Act.

42 ibid.

43 Chapter 4, Section 1 of the Patent and Market Courts Act (2016:188)

44 Chapter 43 of the Procedural Code.

45 ibid.

46 Chapter 18, Sections 1 and 8 of the Procedural Code.

47 Chapter 18, Sections 3, 6 and 7 of the Procedural Code.

48 Section 39 of the Patents Act.

49 The Supreme Court, NJA 2000 p. 497.

50 The Patent and Market Court of Appeal's judgment on 10 July 2017 in case PMT 6900-16.

51 The Supreme Court, NJA 2002 p. 660.

52 The Patent and Market Court of Appeal's judgment on 17 November 2016 in case PMT 744-16.

53 Section 3 of the Patents Act sets forth the infringing acts, direct and indirect.

54 Svea Court of Appeal, judgment given on 12 December 1990 in case T 1253-89.

55 So, for example, in Section 57 b of the Patents Act, contribution is not expressly mentioned in Section 58, which governs liability in damages, but the legislator considered it clear that contribution was covered by the language of the provision without such mention, see NJA II 1968 p. 93.

56 The Patent and Market Court's decision on 13 July 2017 in case PMT 8260-17.

57 Section 52 of the Patents Act.

58 See, for example, the Patent and Market Court of Appeal's judgment on 21 April 2017 in case PMT 4063-16.

59 See, for example, the Patent and Market Court of Appeal's judgment on 28 March 2019 in case PMT 360-18.

60 See, for example, the Patent and Market Court of Appeal's judgment on 31 January 2020 in case PMT 5945-18.

61 See the Patent and Market Court's judgment on 17 April 2020 in case PMT 15230-18, which currently is on appeal.

62 The Patent and Market Court of Appeal, judgment given on 21 June 2018 in case PMT 7239-17.

63 Section 58 of the Patents Act.

64 See Stockholm District Court's judgment on 15 May 2013 in case T 20502-10.

65 Section 3 of the Patents Act.

66 ibid.

67 Section 4 of the Patents Act.

68 Section 3 of the Patents Act, which provides all the exemptions discussed in this paragraph.

69 Section 57 b of the Patents Act.

70 Section 59 of the Patents Act.

71 Section 57 h of the Patents Act.

72 Section 58 of the Patents Act.

73 Judgement from the Supreme Court; NJA 2019 s. 3

74 Gov't bill 2008/09:67 p. 235 et seq.

75 The Patent and Market Court's judgment on 15 December 2017, in cases PMT 7403-15, etc.

76 The Patent and Market Court of Appeal's judgment on 28 March 2019 in case PMT 360-18.

77 Section 63 of the Patents Act.

78 Section 57 of the Patents Act.

79 Government Report (SOU) 2015:41 p. 198.

80 The subsidiary right to indict is provided in Chapter 20, Section 8 of the Procedural Code.

81 Sections 45–48 of the Patents Act.

82 Sections 49 of the Patents Act.

83 Section 53 of the Patents Act.

84 The Patent and Market Court of Appeal's decision on 19 December 2019 in case PMÄ 2680-18 and the Patent and Market Court of Appeal's case PMÄ 9354-17, which has been referred to the CJEU (case C-354/19).

85 The Patent and Market Court of Appeal's judgment on 2 July 2019 in case PMT 10710-17 and the Patent and Market Court of Appeal's judgment on 5 March 2020 in case PMT 585-19.

86 The Patent and Market Court of Appeal's judgment on 31 January 2020 in case PMT 5945-18.

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