STOCKHOLM REGIONAL DIVISION Law and Practice Contributed by: Peter Kenamets, Fredrik Lüning and Linnéa Hedström, Lind Edlund Kenamets Intellectual Property AB
are highlighted that may be regarded as leading cases for procedural developments before the Division. Stay of Proceedings One example that may reflect a different approach by the NBRD compared to national Swedish practice concerns the stay of proceed - ings. In Edwards v Meril regarding EP 2 628 464, the Division stayed the case for eight months due to pending opposition proceedings before the EPO. That outcome might have been the same in Swedish national proceedings under similar circumstances. In Edwards v Meril regarding EP 3 769 722, however, the Division rejected a request for stay, despite the fact that the EPO opposition hearing was scheduled for the day after the NBRD’s oral hearing. That decision was appealed, remitted and again reconsidered by the NBRD, which maintained its refusal to stay proceedings. This position appears to be some - what stricter than that under national Swedish practice, where stays have sometimes been granted because of parallel EPO proceedings. Hearing of Expert Witnesses In Abbott v Dexcom, the NBRD addressed the procedural question of when and how expert witness testimony should be heard. The Division scheduled a full day of expert testimony to take place on the day before the oral hearing, involv - ing two expert witnesses from each side. The court provided limited reasoning for its deci - sion beyond citing Article 53.1 of the UPCA, which allows for the hearing of witnesses, and referring to Rules 178 and 181 of the Rules of Procedure, which govern such hearings. The Division did, however, specify that the exami - nation should be kept brief: each party was allowed 20 minutes for direct examination and cross-examination, and then ten minutes for
re-examination. In view of the strong oral tra - dition in Swedish proceedings and the limited scope for relying solely on written testimony, this approach is consistent with expectations drawn from national practice. Security for Costs In one of the cases Edwards v Meril, the Division considered a request by the defendant, Meril, that the claimant, Edwards, be ordered to provide security for costs in the amount of EUR800,000. The value of the proceedings was estimated at EUR3 million. Meril argued that Edwards, a US- based company, might not voluntarily comply with a cost recovery order issued by the UPC, and that it was highly uncertain whether such an order could be enforced in the United States. The NBRD rejected the request. It emphasised that the burden rests with the party seeking security to provide sufficient justification. The Division held that the lack of prior UPC enforce - ment experience in the United States did not, in itself, justify an order for security. Furthermore, Meril had presented no evidence suggesting that Edwards would be unable to satisfy a costs order, if issued. Jurisdiction in View of Parallel National Proceedings In Texport v Sioen, the defendant Sioen chal - lenged the NBRD’s jurisdiction, citing pending Belgian national court proceedings. In the case before the NBRD, Texport (the licensee of the patent) brought an infringement action against Sioen based on alleged infringing acts in Latvia and Portugal. Prior to this, Sioen had brought an action in Belgium seeking a declaration of non-infringement against the patent holder but not the licensee. After the NBRD action com - menced, Sioen also initiated invalidity proceed - ings in Belgium.
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