Swedish patent case-law and 2018 patent highlights

The Swedish Association for the Protection of Intellectual Property (SFIR) had its yearly big event --“The case-law day”-- on the 17^th of January, in Stockholm, Sweden. This gathering  is a forum where the most important case law from the Swedish courts (as well as from the CJEU, EPO and EUIPO) from the previous year are presented and discussed. The day is divided in several sessions, each  one concerning a distinct intellectual property right (check the website for the presentations, unfortunately in Swedish www.sfir.se).

photo from previous SFIR conference

In the patent session  (presented by lawyer Peter Sande), two cases were in focus--, the 2018-01-31, PMT 2097-15 och PMT 6191-17 Actavis ./. Eli Lilly case and the 2018-11-16, PMT 1387-16 Alfa Laval ./. SWEP case.

The Actavis ./. Eli Lilly case

The Actavis ./. Eli Lilly case concerned the principle of equivalence. The Swedish Patent and Market Court applied the principles set out  in an earlier case, the Easypark case (17 November 2016, mål PMT 744-16), providing that  for  patent infringement to have been committed under the principle of equivalence,  four criteria  need  to be met, namely: i) the inventive idea has to have been exploited in its entirety ; ii) the infringing product/method has to reach the same technical result as the patented invention; iii) the differences between the infringing product/method and the patented product/method have to be obvious for the man skilled in the art; and iv) the infringing solution has to be equivalent to the patented solution.

However, the court ruled that the doctrine of equivalence will not apply if one of the following two circumstances are present, in which case  infringement by equivalence will not be at all considered, namely i) the invention in question is far removed  from the prior art; or  ii) where the patent holder has  purposely  delimited the scope of protection of the patented invention ( with respect to either  novelty or inventive step). 

Answering the question as to whether the Easypark criteria are fulfilled in the instant case, the court answered in the affirmative.  It then determined that the delimitation made in the  context of  the specific patent applicant did not constitute such a restriction that would exclude the application of the principle of equivalence.

This case is particularly enlightening  in its discussion about  the  application of the principle of equivalence. One further conclusion that can be drawn from the case is that it might be in the interest of the alleged infringer to consider  the  entire  patent application file in a  patent infringement  action,  because there could be evidence that might serve  to exclude the application of the principle of equivalence.

The Alfa Laval ./. SWEP case

The Alfa Laval ./. SWEP case concerned a process patent.  The court elaborated particularly on the issue of burden of proof and how to allocate it  between the patent holder and the alleged infringer. It is noted that this is  the first time the Swedish Court elaborates  on the burden of proof regarding process patents.  Against this backdrop, the court  ruled  that the patent holder must  show that it is probable (“sannolikt”) that the patented process was used.  If he does, the alleged infringer will then  have to show that it is probable that another method was used instead.

In  support  of its reasoning, the court (unusually for a Swedish court) makes  direct reference to Article 34 TRIPS and  Article 55 of the Unitary Patent Court Agreement.

Statistics

This  presentation included even some interesting statistics. During 2018, the Swedish Patent and Market Court received 27 new lawsuits,  while it reached a final ruling in 24 cases (seven of which concerned a preliminary injunction). At the same time, the Swedish Patent and Market Court of Appeal received five new lawsuits and reached a final ruling in seven cases (two of which concerned a preliminary injunction). Since both courts are still rather new, (having been established only  in 2016), these data  about the number of filings and adjudications   by these two specialized courts is noteworthy.