SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
1.10 Post-Grant Proceedings Available to Owners of Intellectual Property Rights Once a patent has been granted there are two possible ways for a patentee to amend its grant- ed patent. Patentee-Proposed Amendments The patentee may file a request to the PRV consisting of proposed amendments to one or several of the granted patent claims and, where necessary, also amendments to the description. The proposed amendments must limit the scope of the patent compared to the granted rights. Furthermore, the description needs to be suf- ficiently clear in order to enable a person skilled in the art to utilise the invention. In addition, the amendments may not cover subject matter which did not appear in the application as filed (ie, added matter). The PRV may not, without the consent of any applicable rights-holders, grant a request to amend an already granted patent if the patent is subject to seizure, charged with a lien, claimed through attachment or part of a pending dispute concerning the transfer of the patent. Further- more, if the patent is subject to opposition pro- ceedings before the EPO or part of an invalidity action, at the time the request for amending the patent is made, that request shall be denied. Amendments During Revocation Proceedings A patentee may also file one or several claims (auxiliary requests) to the court during the course of a revocation action in order to amend the pat- ent claims. Such auxiliary requests also need to comply with the above-mentioned requirements for the procedure before the PRV. In addition, the court needs to assess whether the amended pat- ent claims in the auxiliary requests contain the definitive information concerning what is sought to be protected by the patent. The court will,
if the patent as granted is found to be invalid, assess whether such auxiliary requests present- ed by the patent holder mean that the patent, in its amended wording, should be deemed valid. Furthermore, if a patent holder seeks to amend its patent during ongoing revocation proceed- ings, such proposed amendments must fall with- in the scope of the revocation action requested by the plaintiff.
2. Initiating a Lawsuit 2.1 Actions Available Against Infringement
A patentee (or licensee) is entitled to apply for an injunction against imminent or ongoing infringe- ments. An injunction can be obtained against the infringer, or against anybody who participates in the infringement, and the infringer can be sub- ject to a fine. When it is considered urgent to stop an ongoing infringement, the patentee may request the court to issue an interim injunction. Patent infringement can also be prosecuted as a criminal offence. However, in order for a pros- ecutor to initiate a criminal action, there must be a public interest in doing so. Furthermore, Swedish Customs can be contacted in order to seize suspected infringing goods. 2.2 Third-Party Remedies to Remove the Effects of Intellectual Property Remedies There are several remedies for third parties who wish to challenge the exclusive right of a patent. Third parties can: • file a third-party observation during the appli- cation procedure with the PRV;
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