SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
1. Intellectual Property Rights and Granting Procedure 1.1 Types of Intellectual Property Rights In Sweden, inventions may be protected through a patent that gives the patentee an exclusive right to exploit the invention (a “negative right”). Information concerning an invention that has not yet been patented, or which for some reason cannot enjoy patent protection, or is not appro- priate for patent protection, can enjoy protec- tion as a trade secret. In order to be protected as a trade secret, the information concerning the invention must fulfil certain criteria, includ- ing being kept secret and being deemed as important to the company’s business such that it would be detrimental to the company if the information were disclosed. Protection for inventions and trade secrets is pri- marily governed by statute, although the details of protection conferred have been developed through case law. 1.2 Grant Procedure Patents The exclusive right for an invention arises through a patent being granted and thereby registered. A patent application can be made: • nationally; • throughout Europe, pursuant to the European Patent Convention (EPC); or • internationally, pursuant to the Patent Coop- eration Treaty (PCT). For the two latter options, the application is made to the European Patent Office (EPO) or the World Intellectual Property Organization (WIPO) and, following an initial examination, the applicant may choose to designate Sweden as
one protected country. The application is then transferred to the national regulatory authority for the necessary steps to move the application forward. The application authority in Sweden is the Swedish Intellectual Property Office ( Pat- ent- och registreringsverket , or PRV), for both national and foreign applications. Irrespective of the form in which the application is made, a granted patent results in a national Swedish patent registration. As Sweden has also ratified the Agreement on a Unified Patent Court, an applicant may, after being granted a European Patent, choose to file a request for unitary effect at the EPO to obtain uniform protection in all participating member states (a “Unitary Patent”), including Sweden. Swedish patent grant procedure The national application procedure includes a formal and a technical examination; the same also applies to EPC applications, where the application is processed by the EPO. The initial, formal examination is based upon whether the application is complete and whether the application fee has been paid. Any deficien- cies in these respects must be rectified before the technical examination of the invention can be commenced. The subsequent technical examination is based upon whether the inven- tion is patentable – ie, whether it is novel, may be subject to industrial application and involves an inventive step. Inventions whose commercial exploitation would violate public order or moral- ity, such as inventions relating to the cloning of human beings, are not patentable. In this context it may be noted that Swedish authorities and courts follow the case law of the EPO. The person responsible for the subsequent technical examination must be a qualified pat-
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