Ström & Gulliksson answers an extensive Q&A about the patent process in Sweden published in Global Patent Litigation Guide
How can patent owners best enforce their rights in your jurisdiction? What level of expertise can litigants expect from courts? To what extent is forum selection possible in your jurisdiction? How much should a litigant budget for in order to take a case through to a decision at first instance?
These questions and many more has been answered by Senior Partner and European Patent Attorney Björn Andersson and Managing Partner and European Patent Attorney Rikard Roos in Global Patent Litigation Guide: Helping businesses navigate the new normal 2021, a supplement to IAM.
Here is a short extract, for a full version please download this PDF.
Q: How can patent owners best enforce their rights in your jurisdiction?
In Sweden, a patent right is best enforced by initiating court proceedings at the Patent and Market Court on the alleged infringement. The Patent and Market Court was established in 2016.
Q: Are mediation and arbitration realistic alternatives to litigation?
Arbitration is available only if there is an agreement between all parties specifying an arbitration clause. Only disputes concerning matters in which the parties may reach a settlement are arbitrable, which means that while patent infringement may be subject to arbitration, patent validity is non-arbitrable.
Q: Who hears patent cases – for example, individual judges, a panel of judges, a mix of judges and technical experts, judges and juries?
The Patent and Market Court, as well as the Patent and Market Court of Appeal, is composed of both legally trained judges and technical experts competent in patent law.
Q: What level of expertise can litigants expect from courts?
The level of expertise of the Swedish courts is very high. As the Patent and Market Court is a specialised court, the judgments are well reasoned and based on an understanding of the technical and legal issues.
Q: Are validity and infringement dealt with together in proceedings?
Typically, yes. Even though issues of validity and infringement are litigated as two individual court proceedings, the court will normally join the cases. The main hearings of the two cases will then be held back-to-back, one directly after the other.
Q: Who may represent parties engaged in a dispute?
Subject to certain general requirements regarding legal capacity and domicile, anyone can represent a party in a Swedish court case. There are no formal requirements in terms of qualification. However, given the complexity of a typical patent case, a party will normally be represented by a team of lawyers and patent attorneys.
Q: To what extent is forum selection possible in your jurisdiction?
In Sweden, all patent cases are tried by the Patent and Market Court. The court is hosted by the Stockholm District Court. Appeals are tried by the Patent and Market Court of Appeal, hosted by Svea Court of Appeal. This means that there is no room for forum selection in patent matters. The advantage of having these specialised patent courts is that they are composed of both legally trained judges and technical experts skilled in patent law. As such, the parties can generally expect a well-reasoned judgment that addresses both the technical and the legal issues.
This article first appeared in Global Patent Litigation Guide: Helping businesses navigate the new normal 2021, a supplement to IAM, published by Law Business Research – IP Division. To view the guide in full, please go to www.IAM-media.com or download this PDF for the full Q&A answered by Ström & Gulliksson regarding Sweden.