SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
The Market and Patents Court of Appeal has clarified in recent case law that the absence of an actual sale is irrelevant to the determination of whether an offering has occurred. Indirect Infringement Indirect infringement, on the other hand, requires an act that contributes to a direct infringement. Indirect infringement occurs if: • a third party, without the consent of the patentee, exploits the invention by offering or supplying a means to a person who is not entitled to exploit the invention to use it in Sweden; • the means relate to an essential element of the invention; and • the party offering or supplying the means knows, or it is obvious from the circumstanc- es, that those means are suited and intended for use in conjunction with use of the inven- tion. A patentee is entitled to the same remedies in both cases: to request an injunction or a declara- tory judgment against the infringer and to seek compensation for damages. 3.3 Process Patents Direct infringement in a process patent may be established either by the infringer using the infringing process in Sweden or by the infringer offering the process for use in Sweden. The lat- ter is dependent on the fact that the infringer knows – or that it is, in the light of the circum- stances in the individual case, clear – that the process may not be used in Sweden without the consent of the patent holder. Direct infringement in a process patent can also be established in cases where an allegedly infringing process is practised outside of Swe-
den, but where the product of that process is placed on the market, used, imported or pos- sessed in Sweden. This is referred to as the indi- rect product protection ( indirekt produktskydd ). The main rule with regards to patent infringement is that the burden of proof lies with the patent holder, who must show infringement. According to case law, in certain cases concerning pro- cess patents the burden of proof of infringement may shift to the alleged infringer if the patent holder shows that it is probable that the alleged infringer uses a process which infringes the pro- cess patent. 3.4 Scope of Protection for an Intellectual Property Right The scope of patent protection is determined by the patent claims. When construing the pat- ent claims, the description may serve as a guide (in light of recent case law from the UPC, the authors expect the description to play a larger role in the interpretation of the scope of protec- tion). Further principles of how to assess the scope of protection have been elaborated in case law. In general, Swedish courts follow the princi- ples of Article 69 of the EPC and the Protocol on the Interpretation of Article 69. Equivalents are deemed to be protected under Swedish law provided that certain criteria – which have been developed in case law – are fulfilled. According to established case law, the follow- ing criteria are decisive in the assessment of equivalents: • the inventive idea must have been utilised completely; • the subject matter of infringement must achieve the same technical result as the
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