SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
• file a request for the transfer of ownership based on title to the invention during the application procedure with the PRV; • file an opposition with the PRV within a cer- tain time from the patent being granted; or • initiate court proceedings with an action for better right/entitlement to the invention, a revocation action, a declaratory action for non-infringement or an action for a compul- sory licence. Procedure To initiate court actions, certain formal rules apply. Only a person claiming entitlement to a patent can initiate an action for a transfer of ownership. Such an action can be brought within one year from the date on which such a person learned of the grant of the patent. If the patentee was acting in good faith regarding their right to the invention when the patent was granted, or when it was assigned to them, an action must be brought within three years from the date on which the patent was granted. A third party may bring a revocation action if a patent is deemed to be detrimental to them. A declaratory action for non-infringement requires the claimant to have a specific interest in a clarification of whether there has been an infringement. This may be the case, for exam- ple, if someone deems that they are prevented from using a method or product in their busi- ness because it is uncertain whether the exclu- sive right of the patent protects that method or product. Any third party who may be presumed to have the ability to exploit the invention in an accept- able manner may seek a compulsory licence.
The applicant must demonstrate that they have unsuccessfully attempted to obtain a licence on reasonable terms from the patent owner. Further- more, a patentee may seek a compulsory licence to use an invention protected by another patent, where the use of the aforementioned patent is dependent on a patent owned by another party (in such cases the applicant must demonstrate that their invention constitutes significant techni- cal progress of considerable economic interest in relation to the other invention). It is very rare for an application for a compulsory licence to be granted by Swedish courts. In addition, anyone who was commercially exploiting an invention at the time a patent appli- cation covering the invention was filed may con- tinue to use the invention notwithstanding the patent. However, such prior-use right requires that the exploitation did not entail clear abuse in relation to the applicant for the patent or any predecessor in title. 2.3 Courts With Jurisdiction The Patent and Market Court is a specialist court which forms part of the Stockholm District Court, with exclusive jurisdiction in matters con- cerning Swedish patents, or the Swedish part of a European patent. It also hosts the seat of the Regional Nordic-Baltic division of the Uni- fied Patent Court with exclusive jurisdictions concerning unitary patents in Sweden. Appeals in cases concerning Swedish patents are made to the Patent and Market Court of Appeal within the Svea Court of Appeal in Stock- holm. A leave to appeal is required in order for the court to try a case. Judgments and decisions from the Patent and Market Court of Appeal are, as a rule, not appeal- able. However, the court may allow an appeal to
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