SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
invention pursuant to the patent, despite dif- ferences in relation to the patent claims; • the differences may be deemed to be obvious ( närliggande ) to the skilled person; and • the solution leads to a result that is equal to the result obtained by the patent-protected solution. If these criteria are fulfilled, there may be fac- tors in the specific case that still exclude an application of the doctrine of equivalents. For example, if the invention is of a simple nature, if the difference between the wording of the patent claim and the supposed infringing object relates to a central feature of the patented invention crucial for its patentability, or if the equivalent feature has been subject to amendments dur- ing the prosecution. However, according to case law from the Patent and Market Court, amend- ments made during the prosecution not related to issues of novelty or inventive step, do not constitute a bar against applying the doctrine of equivalents. 3.5 Defences Against Infringement An alleged infringer will try to exclude infringe- ment of the patent enforced by stating that the act does not fall within the patent’s scope of pro- tection. However, there are other defences that are commonly used depending on the specific situation. The defendant may: • argue prior-use rights; • argue that the alleged infringing acts have been conducted for non-commercial purpos- es or for experimental purposes, or that the Bolar exemption applies. In the special case of standard-essential pat- ents, it may be argued that the patentee has • apply for a compulsory licence; • argue exhaustion of rights; or
failed to offer a licence on fair, reasonable and non-discriminatory (FRAND) terms before seek- ing injunctive relief against a potential infringer. 3.6 Role of Experts Experts appointed by parties have an important role in Swedish patent proceedings. They are frequently consulted and relied upon in order to provide the court with information concern- ing one or several technical issues. The court can also appoint an expert, although this right is rarely exercised. The expert must provide a written expert opinion during the preparatory stages of the proceed- ings. The expert is also examined during the main hearing, and the opposing party has a right to cross-examine the expert. 3.7 Procedure for Construing the Terms of the Patent’s Claim There is no separate procedure for construing the terms of the patent’s claims. The patent claims are inevitably construed in the infringe- ment or invalidity proceedings. 3.8 Procedure for Third-Party Opinions According to the Swedish Code of Judicial Pro- cedure, a Swedish court may request a third- party opinion on matters of fact in relation to a case. However, in civil cases and even more so in patent cases, this is rarely exercised. In the case of third-party opinions on legal mat- ters, the general principle applicable to Swed- ish courts is the “jura novit curia” principle; ie, the court knows the law. However, if a question should be determined in accordance with for- eign law, the court may demand that the party invoking such foreign law should provide evi- dence thereof.
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