SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
An invalidity action that is based on the fact that a patent has been granted to someone who is not entitled to the patent must be brought within one year from the date on which the party claim- ing to have such entitlement 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 after the patent was granted. The same limitation provision applies to an action for transfer of ownership based on enti- tlement to an invention. It may be noted that the one-year period applies regardless of whether or not the patentee was acting in bad faith. There is no special limitation provision in the Swedish Patents Act governing actions for per- manent or interim injunctions. The court may grant an injunction even if the infringer has ceased the infringing activity. With regards to interim injunctions, the granting thereof requires the claimant to show that there is a risk that continuation of the infringing act diminishes the value of the exclusive right granted by the pat- ent. As such, any action where an interim injunc- tion is requested, would need to be filed within a relatively short time frame from the claimant’s discovery of the infringing act (ie, probably within a few months). 2.10 Mechanisms to Obtain Evidence and Information There are several mechanisms by which a party can obtain information from an opposing party or a third party. As a general option, a court may, upon request from any party, issue an order for the produc- tion of written documents according to general provisions in the Code of Judicial Procedure
(1942:740). Anybody holding a written docu- ment that can be assumed to be of importance as evidence in a court case is obliged to pro- duce it. Certain types of documents/information are privileged (eg, correspondence between an attorney and their client, or between relatives). An order for production of written documents can refer to documents in the other party’s pos- session, or in a third-party’s possession. Orders for the Production of Information A patentee or licensee can also obtain an order for the production of information regarding the origin and distribution network of infring- ing goods or services. The court may order an infringer or certain third parties involved in an infringement to provide such information under penalty of a fine. An order for the production of information may be issued under the condition that the appli- cant shows probable cause for patent infringe- ment, and that the requested information can be deemed to facilitate the investigation of infringe- ment. It may only be issued if the reasons for the measure outweigh the inconvenience or injury it entails for the person subject to the order or any other opposing interest. Infringement Investigations Furthermore, a patentee or licensee may obtain an order for an infringement investigation. Where it can reasonably be assumed that someone has committed, or contributed to, an infringement of a patent (or an attempted infringement or preparation to infringe), the court may order an investigation in order to search for objects or documents that can be assumed to be of impor- tance for the inquiry into the infringement. The applicant must provide sufficient security for any damage that may be caused to the subject of the investigation.
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