SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
er a patent should be granted. The person who files an observation is not a party to the proceed- ings in a formal sense. However, the third party shall receive a notice if the patent application is granted. A third party may also file a written opposition within nine months of a patent being granted. The opposition procedure includes an exchange of submissions between the patentee and the opponent, after which the PRV decides whether to revoke the patent, maintain it with an amend- ed wording, or reject the opposition. The patent shall be revoked if: • it was granted despite not being capa- ble of industrial application, or it not being novel over the prior art, or it not meeting the requirement of inventive step; • it includes something that was not evident from the application when it was filed; or • it pertains to an invention that is not described with sufficient clarity to enable a person skilled in the art to carry it out with the guidance of the description. The patent shall be maintained with an amended wording if the patentee modifies it during the opposition procedure in order to overcome the obstacles in question. The final decision in an opposition procedure may be appealed by the patentee or the objecting party to the Patent and Market Court within two months of the date of the decision. Entitlement Claims A third party may also file a claim for transfer of ownership based on the party’s title to an invention pending patent registration (a “better right” or “entitlement” claim). At the request of the claimant, the PRV may transfer the patent application or register the claimant as the inven-
tor (or co-inventor). If it cannot be determined who has the better right to the invention, the PRV can order the claimant to initiate court proceed- ings. The PRV will disregard the claim unless the claimant initiates court proceedings within a certain time. A decision to reject a request for transfer may be appealed by the claimant. 1.8 Remedies Against Refusal to Grant an Intellectual Property Right An applicant who is not granted a patent may appeal the decision of the PRV. Likewise, final decisions in opposition proceedings may be appealed by the losing party. An appeal has to be made within two months of the date of the PRV’s decision. The appeal is to be lodged with the PRV, which may reconsider its decision unless there is a party opposing it. If the PRV stands by its decision, or if there is an opposing party, the appeal is submitted to the Patent and Market Court. 1.9 Consequences of Failure to Pay Annual Fees Failure to pay the annual fees of a patent appli- cation will lead to a dismissal of the application. This situation is unusual, since payment for the first three years is due in the third year. Where a patent has been granted, failure to pay the fees will lead to the annulment of the patent. A delay in payment can be remedied if an additional fee of 20% of the due amount is paid within six months. In exceptional cases, where a paten- tee has suffered a loss of rights due to failure of payment despite having observed all due care required, the patentee can complete payment within two months after annulment of the patent and file for a declaration that such payment has been made in due time.
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