Swedish patent case-law and 2018 patent highlights
The Swedish Association for the Protection of Intellectual Property (SFIR) had its yearly big event --“The case-law day”-- on the 17th of January, in Stockholm, Sweden. This gathering is a forum where the most important case law from the Swedish courts (as well as from the CJEU, EPO and EUIPO) from the previous year are presented and discussed. The day is divided in several sessions, each one concerning a distinct intellectual property right (check the website for the presentations, unfortunately in Swedish www.sfir.se).
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| photo from previous SFIR conference |
In the patent session (presented by lawyer Peter Sande), two cases were in focus--, the 2018-01-31, PMT 2097-15 och PMT 6191-17 Actavis ./. Eli Lilly case and the 2018-11-16, PMT 1387-16 Alfa Laval ./. SWEP case.
The Actavis ./. Eli Lilly case
The Actavis ./. Eli Lilly case concerned the principle of equivalence. The Swedish Patent and Market Court applied the principles set out in an earlier case, the Easypark case (17 November 2016, mål PMT 744-16), providing that for patent infringement to have been committed under the principle of equivalence, four criteria need to be met, namely: i) the inventive idea has to have been exploited in its entirety ; ii) the infringing product/method has to reach the same technical result as the patented invention; iii) the differences between the infringing product/method and the patented product/method have to be obvious for the man skilled in the art; and iv) the infringing solution has to be equivalent to the patented solution.
However, the court ruled that the doctrine of equivalence will not apply if one of the following two circumstances are present, in which case infringement by equivalence will not be at all considered, namely i) the invention in question is far removed from the prior art; or ii) where the patent holder has purposely delimited the scope of protection of the patented invention ( with respect to either novelty or inventive step).
Answering the question as to whether the Easypark criteria are fulfilled in the instant case, the court answered in the affirmative. It then determined that the delimitation made in the context of the specific patent applicant did not constitute such a restriction that would exclude the application of the principle of equivalence.
This case is particularly enlightening in its discussion about the application of the principle of equivalence. One further conclusion that can be drawn from the case is that it might be in the interest of the alleged infringer to consider the entire patent application file in a patent infringement action, because there could be evidence that might serve to exclude the application of the principle of equivalence.
The Alfa Laval ./. SWEP case
The Alfa Laval ./. SWEP case concerned a process patent. The court elaborated particularly on the issue of burden of proof and how to allocate it between the patent holder and the alleged infringer. It is noted that this is the first time the Swedish Court elaborates on the burden of proof regarding process patents. Against this backdrop, the court ruled that the patent holder must show that it is probable (“sannolikt”) that the patented process was used. If he does, the alleged infringer will then have to show that it is probable that another method was used instead.
In support of its reasoning, the court (unusually for a Swedish court) makes direct reference to Article 34 TRIPS and Article 55 of the Unitary Patent Court Agreement.
Statistics
This presentation included even some interesting statistics. During 2018, the Swedish Patent and Market Court received 27 new lawsuits, while it reached a final ruling in 24 cases (seven of which concerned a preliminary injunction). At the same time, the Swedish Patent and Market Court of Appeal received five new lawsuits and reached a final ruling in seven cases (two of which concerned a preliminary injunction). Since both courts are still rather new, (having been established only in 2016), these data about the number of filings and adjudications by these two specialized courts is noteworthy.
