SWEDEN Law and Practice Contributed by: Håkan Borgenhäll, Malin Malm Waerme, Åsa Hellstadius and Arvid Axelryd, Advokatfirman Vinge KB
It is possible to submit amicus briefs (or amicus curiae) to a court in order to try to influence the court in its decision; however, such third-party opinions are very rarely seen.
A revocation action may also be initiated in court proceedings, either as an independent action or as a counteraction in an ongoing infringement action. According to Swedish law, there are several grounds that may result in the revocation/can- cellation of the patent granted: • lack of novelty; • lack of inventive step; • insufficient disclosure; • added subject matter; and • a third party having a better right to the inven- tion. As a main rule under Swedish law, it is only required that a granted patent is detrimental to a party in order for such party to have a stand- ing to sue for revocation of the granted patent. 4.2 Partial Revocation/Cancellation A patentee is able to request a patent limitation (eg, in order to limit the scope of the claims in a patent). This course of action may be taken to avoid revocation/cancellation proceedings. The PRV reviews a patent limitation request and, if it is rejected, the decision to reject may be appealed to the Patent and Market Court. In court proceedings, the claimant may contend that only certain claims in a disputed patent should be declared invalid, and thus, if such a claim is successful, the result will be a partial revocation/cancellation of the registered patent. 4.3 Amendments in Revocation/ Cancellation Proceedings In court proceedings regarding the invalidity of a patent, the patentee may propose that the pat- ent claims in question shall be amended in order to maintain a limited scope of protection for the
4. Revocation/Cancellation 4.1 Reasons and Remedies for Revocation/Cancellation Pre-Grant Opposition
Before the relevant authority grants a patent application, third parties have two possible options to oppose the registration of the pat- ent. First, a third party may object to the grant- ing of the patent. Secondly, a third party is able to claim entitlement to an invention. However, a claim for a transfer of ownership to an invention entails the burden of proof of such title lying with the party making the claim. Post-Grant Opposition and Subsequent Revocation Action When a patent application is granted, third par- ties have the right to file a written opposition regarding the granting of the patent, within nine months. Such an opposition must include the grounds on which the third party bases the opposition, and it is tried by the PRV. The decision taken by the PRV regarding an opposition filed by a third party may be appealed to the Patent and Market Court within two months from the decision. Furthermore, there are no standing to sue requirements according to Swedish law in terms of initiating an opposition against a granted pat- ent within nine months from the date a patent application has been granted.
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