SWEDEN Law and Practice Contributed by: Helena Rönqvist, Magnus Jonson, Vilma Slättegård and Anna Karlsson, Magnusson Law
1.4 Ownership, Assignment and Licensing The original owner of an intellectual property right is the person who has created it, whether by produc- ing copyright-protected material, devising a design, or making an invention that gives rise to a patent. As regards patentable inventions, the employer’s rights are governed by statute. In the absence of any contractual agreement to the contrary, the employer may, depending on the degree to which the invention is connected to the employ- ment, acquire full rights to the invention or obtain a licence or an option right. An exception applies to inventions made by teachers (which generally includes university doctoral candidates). The employee is in all cases entitled to reasonable financial compensation for the invention. A Swedish patent may be applied for by the inventor or by any other person or entity holding the rights to the invention. The transfer or licensing of intellectual property rights takes effect by way of contract. No formal require- ments apply, although it is advisable, for eviden- tiary purposes and in the interest of legal certainty, to enter into a written agreement. Registration of an assignment or licence is not mandatory but is recom- mended. Having the correct owner recorded in the relevant register serves, inter alia, to provide notice to third parties and to ensure that notifications regarding annual fees are directed to the appropriate person. 1.5 Patent Infringement and Defences General In patent infringement proceedings, the burden of proof rests with the claimant, who must demonstrate both the existence of its rights and that an infringe- ment has taken place. Swedish law applies a prin- ciple of free assessment of evidence, meaning that there are no restrictions on the types of evidence that may be presented. Evidence commonly relied upon includes photographs, market surveys and expert reports, although the specific evidentiary require- ments will vary depending on the circumstances of each case. Direct Infringement Under statutory law, direct infringement encompasses the following acts:
• manufacturing, offering, placing on the market, or using a product that is protected by a patent, as well as importing or possessing such a product for any of those purposes; • using a process protected by a patent, or – where the party knows, or it is evident from the circum- stances, that the process may not be used without the patent holder’s consent – offering that process for use in Sweden; and • offering, placing on the market, or using a product produced by a process protected by a patent, as well as importing or possessing such a product for any of those purposes. Indirect Infringement Indirect infringement arises where a party contributes to a direct infringement. Specifically, indirect infringe- ment occurs where: • a third party, without the patentee’s consent, exploits the invention by offering or supplying means to a person not entitled to exploit the inven- tion for use in Sweden; • those means relate to an essential element of the invention; and • the party offering or supplying the means knew, or ought to have known, that the means are suited and intended for use in connection with the inven- tion. Remedies In both cases, the patentee is entitled to the same range of remedies, including the right to seek an injunction or a declaratory judgment against the infringer, as well as compensation for damages. Scope of Protection The scope of patent protection is defined by the pat- ent claims. The description may be used as a guide when construing those claims – and, in light of emerg- ing case law from the Unified Patent Court (UPC), it is anticipated that the description will assume a more significant role in the interpretation of the scope of protection. Further principles governing the assessment of the scope of protection have been developed through case law. Swedish courts generally apply the princi-
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