SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
the defendant can show that it is probable that the patent will be declared invalid. In this regard, the defendant would need to rely on either (i) new circumstances or new evidence not taken into account during the examination proceed- ings, or (ii) deficiencies or inaccuracies in the examining authority’s decision. Recent case law from the Swedish Patent and Market Court of Appeal has confirmed the robustness of the validity presumption, empha- sising that highly persuasive circumstances and evidence are required to overturn it. In these recent cases, which concerned an assessment of the validity of a patent within PI proceedings, the court found after a thorough assessment of the evidence at hand that it was likely that the patent was invalid and thus denied the PI. These cases show that the presumption of valid- ity is still strong in Sweden, but also that there are ways for the defendant to rebut this pre- sumption. However, it is important to remember that the validity presumption will be assessed on a case-by-case basis considering all evidence at hand. It may also be noted that it has been established in case law that the validity pre- sumption is not necessarily affected by the fact that the relevant patent has been held invalid in interim injunction proceedings in other jurisdic- tions. Procedure for Granting an Interim Injunction Interim injunctions are normally decided follow- ing written correspondence between the parties without any oral hearing. It is very unusual to make use of the possibility of holding an interim oral hearing. An injunction may be issued without notifying the defendant before the decision is rendered if a delay would entail a risk of loss (an ex parte
decision). Swedish courts are, in general, reluc- tant to issue such injunctions. It would require extraordinary circumstances in patent cases. How long it takes before a preliminary injunc- tion may be granted varies, depending on the complexity of the case. In normal cases, one can expect to have a decision within two to six months. 2.8 Protection for Potential Opponents There are no particular protective measures, such as protective briefs, for a potential oppo- nent. However, in order to challenge a claimant’s request for an interim injunction, the defendant may, apart from arguing non-infringement, argue that the security provided by the claimant con- tains deficiencies or ambiguities (eg, regarding the amount or the wording of a bank guarantee or the authority on which it is based). A potential opponent may file a declaratory action for non-infringement, or commence inva- lidity proceedings. 2.9 Special Limitation Provisions The Swedish Patents Act contains several spe- cial limitation provisions. The right to damages in infringement proceed- ings is limited to damages incurred during the five years preceding the date on which an action is brought. An action regarding damages pertaining to the application period up until the grant of a pat- ent must be brought no later than one year after the expiry of term for opposition or, where an opposition has been brought, no later than one year after a ruling by the patent authority that the patent shall be maintained.
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