SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
2.7 Interim Injunctions A patentee or a licensee may request an interim injunction. Conditions for Granting an Interim Injunction An interim injunction may be granted if the fol- lowing conditions are fulfilled; • the applicant must show probable cause for an infringement of the patent (or imminent infringement); • there must be reasons to believe that, by continuing to infringe or to contribute to the infringement, the defendant diminishes the value of the exclusive right in the patent; • the measure must not entail inconvenience or injury to the defendant that is dispropor- tionate to the reasons in favour of an interim injunction; and • the applicant must provide sufficient security for any loss which the defendant might incur as a result of the injunction. Where the claimant does not have the ability to lodge the security, the court may discharge them from the obligation. The security is normally a bank guarantee that may be used by the defend- ant. The Presumption of Validity in Interim Procedures The purpose of an interim injunction is to pre- serve the value of an exclusive right until the case has been conclusively adjudicated or the court has reversed the interim injunction decision (eg, following the inclusion of new evidence). If the defendant has filed a counterclaim for revo- cation, the court will also take into considera- tion whether it is probable that the patent will be invalidated. However, there is a presumption that a granted patent is valid in interim proce- dures. This presumption may be overturned if
the Supreme Court if a case involves an impor- tant issue of legal principle. However, such an appeal is still subject to a leave to appeal from the Supreme Court. 2.4 Specialised Bodies/Organisations for the Resolution of Disputes There are no specialised bodies or organisations for the resolution of disputes related to patents or trade secrets in Sweden. 2.5 Prerequisites to Filing a Lawsuit There are no statutory prerequisites to filing a lawsuit. However, the ethical rules of the Swedish Bar Association require its members ( advokater ) to give an opponent reasonable time to consider a claim before taking legal action. Furthermore, a party who initiates an unnecessary action is liable to pay the counterparty’s litigation costs, even if they win the case. Cease-and-desist let- ters are thus used in almost all cases, unless there are particular (urgent) reasons not to do so (eg, interim injunctions). Anyone who wants to initiate court proceed- ings in relation to the validity of a patent must notify the PRV and inform everyone who has a licence or a pledge for the patent, according to the PRV’s register. 2.6 Legal Representation The parties in patent proceedings do not need to be represented by a lawyer. In theory, anyone may be appointed and act as a party’s repre- sentative, or a party may simply choose to repre- sent themselves. However, due to the technical and complex nature of patent litigation, a legal counsel is almost always chosen to act as the party’s representative.
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