SWEDEN Law and Practice Contributed by: Helena Rönqvist, Magnus Jonson, Vilma Slättegård and Anna Karlsson, Magnusson Law
ples set out in Article 69 of the EPC and the Proto- col on the Interpretation of Article 69. The doctrine of equivalents is recognised under Swedish law, subject to the fulfilment of certain criteria established in case law. Available Defences An alleged infringer will typically seek to avoid a find- ing of infringement by arguing that the act in question falls outside the scope of protection conferred by the patent. Beyond this primary defence, a number of other defences are commonly invoked depending on the circumstances of the case. The defendant may: • assert prior-use rights; • apply for a compulsory licence; • invoke the exhaustion of rights doctrine; or • argue that the alleged infringing acts were carried out for non-commercial or experimental purposes, or that the Bolar exemption applies. In cases involving standard-essential patents (SEPs), it may further be argued that the patentee failed to offer a licence on fair, reasonable and non-discrimi- natory (FRAND) terms prior to seeking injunctive relief against the alleged infringer. 1.6 Patent Enforcement and Remedies Infringement All court proceedings and matters concerning intel- lectual property, competition and marketing law fall within the jurisdiction of the Patent and Market Court at first instance and the Patent and Market Court of Appeal at second instance. Swedish intellectual property legislation provides for criminal liability in respect of infringement. Criminal sanctions apply where the infringement is commit- ted intentionally or through gross negligence, and the penalties range from fines to imprisonment depending on the gravity of the offence. The public prosecutor may bring criminal charges only where prosecution is considered to be in the public interest. Infringement of intellectual property rights may be pursued through civil court proceedings. In addition, opposition proceedings and administrative invalidity proceedings may be initiated against registered rights.
Alternative dispute resolution is available only where both parties consent to such proceedings. As a general indication, civil proceedings for intel- lectual property infringement typically take around 12 months from the filing of the application for a sum- mons to a first-instance decision by the Patent and Market Court. Patent cases, however, may require approximately 18 months at first instance. A decision may be appealed to the Patent and Market Court of Appeal, where the appellate process, provided leave to appeal is granted, generally takes an additional year. Court Proceedings Civil proceedings are initiated by filing an application for a summons with the Patent and Market Court. Fol- lowing the initial exchange of written submissions, the court will ordinarily convene a preparatory hearing at which the procedural timetable is established and the prospects of a settlement are explored. The parties subsequently submit their evidence in advance of the main hearing, which generally takes place approxi- mately 12 months after the summons was filed. A main hearing is not mandatory; the court may decide the case on the basis of the written submissions alone, provided it considers a hearing unnecessary and neither party requests one. The main hearing comprises opening statements, examination of witnesses and experts, and closing arguments. A judgment is typically delivered within four weeks of the conclusion of the main hearing, although more complex cases may require additional time. Judgments of the Patent and Market Court may be appealed to the Patent and Market Court of Appeal, subject to leave to appeal being granted. As a gen- eral rule, decisions of the Patent and Market Court of Appeal are final and may not be further appealed. In exceptional circumstances, however, the Patent and Market Court of Appeal may permit an appeal to the Supreme Court, in which case the Supreme Court must also grant leave to appeal.
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