STOCKHOLM REGIONAL DIVISION Law and Practice Contributed by: Peter Kenamets, Fredrik Lüning and Linnéa Hedström, Lind Edlund Kenamets Intellectual Property AB
ed with UPC litigation will also become increas - ingly clear and will likely influence user behaviour significantly. Initial indications suggest that the costs may be considerable, which in itself could impact the incentives to choose the UPC over national alternatives. Another key factor will likely be the development of the success rate for patent holders in UPC liti - gation. If patent holders perceive the outcomes to be generally favourable or at least fair and predictable, this will naturally encourage further use of the system. The stance of the pharmaceutical and life sci - ences industries will also be crucial. So far, these sectors have shown a degree of caution – often taking a wait-and-see approach. Whether they continue along this path or begin to engage more actively with the UPC will be a defining trend. Their eventual acceptance of the UPC could have a strong influence on the volume and character of litigation before the Court. The authors also note that recent data from the EPO shows a notable increase in the number of requests for Unitary Patent protection in 2024 compared to 2023. This suggests that patent holders are increasingly viewing the system, and by extension the UPC, in a positive light. Over time, this is likely to translate into a growing number of UPC cases. A further important development relates to how holders and implementers of standard-essential patents (SEPs) perceive the UPC as an attrac - tive venue. SEP and FRAND disputes represent a significant proportion of the high-stake pat - ent litigation in Europe. The ability to obtain an injunction with effect across multiple EU mem - ber states is potentially a powerful tool for SEP holders, and the initial SEP and FRAND-related
decisions issued by the UPC in Philips v Belkin, Panasonic v Oppo and Huawei v Netgear have been a success for the SEP holders. That said, it remains to be seen whether this approach will continue. It is certainly not inconceivable that future outcomes could become significantly more even between SEP holders and imple - menters. 6.3 The Future of National Patent Litigation The role of national patent litigation in Sweden is undergoing transformation and will be influ - enced by how market participants choose to engage with the new European patent system, particularly the UPC, as previously discussed. Given that the UPC has been operational for a relatively short period, it is still premature to draw definitive conclusions about its overall impact, though it is expected to be substantial. In Sweden, disputes within the life sciences sec - tor – especially regarding pharmaceutical pat - ents – have historically constituted a substantial portion of patent litigation. Consequently, the stance that the pharmaceutical and life sci - ences sectors adopt towards the UPC is likely to be the single most critical factor shaping the future landscape of national patent litigation in Sweden. Another aspect that could influence the role of national patent litigation in Sweden and other European countries moving forward is the extent to which stakeholders consider the recent rul - ings of the CJEU in C-339/22 BSH Hausgeräte and the earlier decision in C-399/21 IRnova, both concerning the international jurisdiction of European courts. These decisions notably affect patent hold - ers’ enforcement strategies against EU-based
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