Patent infringement in public procurement? Still awaiting an answer

In the latest patent law case by the Patent and Market Court of Appeal at the Svea Court of Appeal in Sweden, PMT 360-18, the Court overturned the ruling of the Patent and Market Court, thereby rejecting   a claim of contributory infringement of European patent EP0868002B1   in connection with submission of a public tender. The infringement claim was rejected on the ground that the patent in question is invalid due to a lack of inventive step. 

Contributory infringement  occurs  when a third party provides another party with the necessary preconditions (a method, a device, materials) in order to commit patent infringement (e.g., under  Chapter 1 3§2 in the Swedish Patent Law).  In this case, contributory infringement was alleged in connection with a tender concerning delivery of VSCs to a plant providing for transfer of high voltage direct current, such that the VSCs were to be combined with polymer-insulated cables in accordance with the patent.

In ruling that the alleged infringed patent was invalid due to lack of inventive step, the Patent and Market Court pointed to prior art, consisting of a previous patent that covered a converter connection for conversion between AC and DC, especially at high voltage DC. From this piece of prior art, it was clear how VSCs can be used to alter the feeding direction of electric effect through the voltage network without altering shifting polarization.

The Court considered how the man skilled in the art would view the use of polymer-insulate cables and took into account that the technical solution provided should be both environmentally-friendly and economically sustainable. 

The Court stated that although there was no industrial use of such cables prior to the priority date, it  did not mean that the man skilled in the art,  facing the objective problem stated in the patent document, would fail to reach the same technical solution as that provided by the invention. As well, the use of such cables constitutes a clear, albeit expected environmental benefit, in relation to traditional overhead wires. Thus, the invention lacked inventive step. 

It's electric waiting for a ruling on public procurement

From the point of view of jurisprudence, once the issue of invalidity was determined, the question of contributory infringement in connection with the submission of a tender in a public procurement (here, the Swedish government authority Svenska Kraftnät), was put off until another day.  

But the issue remains: what is the relationship between the circumstances of public procurement and the preservation of the rights of the patent holder? What happens when the public procurement specification describes the technology that is covered by patent protection? The public authority that is interested in the specific technology is under an obligation to proceed with an open public procurement. But in doing so, it (even if only indirectly) invites interested parties to submit tenders that constitute patent infringement. 

The perhaps odd effect is that the public authorities may proceed in such a way that encourages infringement of a patented technology by turning them into technological standards, on the basis of which the tenders are meant to be submitted.  The last word (even the first word?)  on this challenging issue has yet to be given.