SWEDEN Law and Practice Contributed by: Helena Rönqvist, Magnus Jonson, Vilma Slättegård and Anna Karlsson, Magnusson Law
If know-how is not considered a trade secret, there are no specific statutory provisions that regulate know- how as such. Instead, the parties may regulate own- ership of know-how in the employment contract or in separate agreements, for example, through non- disclosure agreements. 6.4 Protection Through Contract and Confidentiality The most used contractual mechanisms for the pro- tection of know-how are non-disclosure agreements (NDAs), confidentiality clauses (whether contained in employment contracts, consultancy agreements, or commercial contracts), and non-use provisions restricting the recipient from utilising the know-how for purposes other than those expressly permitted. These mechanisms are frequently combined to provide com- prehensive protection. In addition, non-compete and non-solicitation clauses may be employed to limit the risk of know-how being exploited by former employ- ees or business partners. 6.5 Licensing and Assignment Know-how may be assigned or licensed separate- ly from any related trade secrets or patents. Since know-how is not a registered intellectual property right under Swedish law, its transfer and licensing are gov- erned by general contract law principles. There are no statutory formalities for the assignment or licensing of know-how; in particular, no requirement of writing, recordal, or notarisation applies. However, for reasons of evidence and legal certainty, it is strongly advis- able to document any assignment or licence in writ- ing, clearly defining the scope of the know-how, the permitted use, any restrictions on further disclosure, and the duration of the arrangement. Where know- how is transferred or licensed in connection with a patent or trade secret, the parties should ensure that the respective agreements are co-ordinated to avoid gaps or inconsistencies in the allocation of rights. 6.6 Reverse Engineering Swedish law does not specifically prohibit reverse engineering, provided that the product has been acquired lawfully. The Swedish Trade Secrets Act expressly provides that the observation, study, dis- assembly, or testing of a product that has been made available to the public, or that is lawfully in the pos-
session of the person carrying out the analysis, does not constitute unlawful acquisition of a trade secret. Contractual restrictions on reverse engineering are, however, common and generally enforceable under Swedish law. Parties may, by way of licence agree- ments, NDAs, or terms of use, prohibit or limit the right to reverse engineer a product. A contractual restriction on reverse engineering that is reasonable in scope and purpose will, as a general rule, be upheld by the courts. 7. Data, AI and Emerging IP Issues 7.1 Data Rights and Database Protection Swedish copyright law recognises a sui generis cata- logue right which provides protection to compilations of information, such as catalogues, tables, databases, and similar productions. Protection under the cata- logue right arises where either a large number of items of information have been compiled or the compilation is the result of a substantial investment. The right con- fers on the producer an exclusive right to reproduce the compilation and to make it available to the public. The protection extends to the compilation as such, and not to the individual items of information con- tained therein. The protection is valid 15 years after the year in which the work was first made available to the public. 7.2 AI-Generated Works and Inventorship/ Authorship Only natural persons can be original inventors/authors. Where an output is generated autonomously by an AI system without sufficient human creative input, it is unlikely to qualify for protection. Where, howev- er, a natural person has exercised creative choices in directing or shaping the output, such that the AI serves merely as an assisting tool, copyright may vest in that person in accordance with the ordinary rules on authorship in accordance with the copyright law. 7.3 Training Data, Model Development and Infringement Risk The basic principle of intellectual property law is that the unauthorised use of protected works constitutes an infringement of intellectual property rights. The
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