EPLAW Patent Blog

SE - Legro v. Svegro

Legro Gartneri A/S v. Svegro AB, Svegro AB v. Legro Gartneri A/S, District Court of Stockholm, 26 April 2012, Docket No. T 106-10 and T 5193-10 (joint cases)

Svegro requested that the District Court should declare Lergo’s European patent EP1197137 (A method of growing two or more plants for the development of a composite or combined plant) invalid as far as concerns Sweden. The request was denied by Legro, including (as part of its defence) a request for a limitation of the patent should it otherwise be considered invalid. The parties also agreed that the District Court should assess whether Svegro infringed the patent-in-suit provided that it was valid.

In the invalidity case, focus for the assessment of novelty was whether the invention of the patent-in-suit had been disclosed by public use before the filing date of the patent application. In this respect, reference was made to case law from the EPO. It was first concluded that use of the invention in greenhouses or in private did not constitute “public use” unless the public had access to such facilities without a confidentiality undertaking. Furthermore, it was noted that there could be “public use” if the patented method was possible to understand following examination of the products produced by the use of such method but that the person skilled in the art would not have understood with certainty which method that had been used following such examination in this case. Hence, the invention was novel. However, the District Court concluded that the invention lacked inventive step when considering certain prior art invoked by Svegro. In support of its argument that the invention constituted an inventive step, Legro had invoked inter alia a licence agreement pursuant to which the patent-in-suit had been licensed to a third party. While commercial success can be a factor indicating an inventive step, the District Court was of the opinion that the existence of the licence agreement did not alter its assessment. 

In the District Court's judgment, the patent-in-suit was declared invalid but that Svegro would infringe the patent if it was valid (hypothetical case). However, in its assessment of infringement in the hypothetical case, the District Court also considered whether there was any prior user rights defence for Svegro. The District Court concluded that one of Svegro’s suppliers had used the patented method in accordance with such prior user rights defence and, consequently, that Svegro’s handling of products manufactured during such time by its supplier did not constitute patent infringement. Legro was ordered to reimburse Svegro’s legal costs.

The infringement case was stayed pending any appeal of and final judgement in the invalidity case. The parties have now settled the case.

Read the judgment (in Swedish) here.

Head note: Erik Ficks

SE - Jurisdiction re Foreign Patents

The Swedish Supreme Court Confirms Jurisdiction in Relation to Also Foreign Patents Subject to Reclamation in Swedish Bankruptcy Proceedings, by Erik Ficks

In times of economic turmoil, in combination with intellectual property having become one of companies’ most important assets, legal issues relating to intellectual property in insolvency are very topical.

In recent years, the Swedish Supreme Court has made an effort in trying to clarify this area of law. I have previously reported on two cases relating to distressed intellectual property under Swedish law on this blog, read the previous article here.

In a new case from the Supreme Court, jurisdictional matters in terms of competence of Swedish courts were considered. The case involved a creditor’s recovery claims in a bankruptcy, in which the assets requested to be recovered consisted of Swedish and foreign patents that had previously been assigned under an agreement to a foreign company located in Saint Kitts and Nevis. The foreign company objected that the claim was inadmissible due to lack of competence for Swedish courts to determine the case. The Supreme Court thus had to determine whether Swedish courts are competent to decide the case in relation to the recovery claim. Since the respondent was domiciled outside the EU, Regulation (no 1346/2000) on insolvency proceedings was not applicable when determining the jurisdictional matters. Neither were any specific Swedish procedural rules applicable.

When determining the competence of Swedish courts, the Supreme Court concluded that it was the relevant legal act (i.e. the transfer agreement) rather than the objects encompassed by the legal act that was subject to the recovery claim. Accordingly, it was the legal act that was relevant when determining the jurisdiction (and not the patents as such). The Supreme Court then concluded that Swedish Courts are competent to determine the case, even though the dispute to some extent relates to the transfer of foreign patents (i.e. assets outside of Sweden).

The Supreme Court has with this judgment through case law established a new principle under Swedish law for determining jurisdiction in these matters. This clarification is a valuable contribution in an area of increased importance.

Read the judgment (in Swedish) here.

SE - EveryMed v. Roche Diagnostics

EveryMed AB v. Roche Diagnostics GmbH, Svea Court of Appeal, Sweden, 27 June 2012, Docket No. T 5531-11

On appeal of a District Court of Stockholm judgment in joint infringement and invalidity proceedings, the Svea Court of Appeal confirmed the District Court's judgement by dismissing Everymed’s claim that Roche’s European patent EP0622119 (System for dispensing test elements) was invalid as far as concerns Sweden. However, unlike the District Court, the Court of Appeal concluded that the patent-in-suit was not infringed by Everymed (through its system “EveryX3”) and therefore reversed the District Court’s judgment on damages, injunction and reimbursement of legal costs.

The key differences in the assessment by the Court of Appeal, compared to the assessment by the District Court, was that the Court of Appeal made a stricter interpretation of two terms in the patent claims and whether they should be interpreted as a requirement that a test element completely leaves the chamber of the device or whether it also includes a system in which the test element partially stays in the chamber. For its conclusion that the scope of patent protection was limited to a system in which the test element completely leaves the chamber, the Court of Appeal found support in the linguistic meaning of the relevant terms and also how the technical problem was formulated in the description.

Interesting to note from the Court of Appeal judgement is, to begin with, that it was established that a patent cannot be declared partially invalid upon request from the counterpart to the patentee only, i.e. when the patentee has not requested in its defence that the patent be limited at the risk of otherwise being declared invalid in its entirety (a possibility that was introduced in the Swedish Patents Act in 2007 for the implementation of the EPC 2000). The background was that Everymed requested that one (independent patent claim) of the (in total 13) patent claims of Roche’s patent be declared invalid.

SE - Anza v. Rusta

Anza Aktiebolag v. Rusta AB, District Court of Stockholm, 16 December 2011, Docket No. T 15349-10

Invoking a Swedish patent for an integrated support device to paint brushes, Anza requested that the District Court should declare that Rusta would infringe the patent if selling products similar to its currently sold paint brushes with integrated support devices and be prohibited against penalty of a fine to continue selling such paint brushes. The alleged patent infringement was denied by Rusta, referring to the prior art as guidance to how the scope of the patent protection must be considered limited so as to not covering its products. The District Court concluded that the patent had not been infringed and denied the claims.

In the District Court's assessment, it was emphasized that the scope of patent protection is determined by the patent claims interpreted not only by its letter but also by taking into account the description. Upon interpretation of the patent claims, the District Court concluded that the person skilled in the art would understand the invention as different from the defendant's products. It was also noted that based on what had been invoked regarding the prior art, the scope of the patent protection should not be extended to cover the defendant's products.

Read the judgment (in Swedish) here.

Head note: Erik Ficks

SE - Hospira v. Aventis

Hospira UK Limited and Hospira Enterprises B.V. v. Aventis Pharma S.A., District Court of Stockholm, 7 October 2011, Docket No. T 19169-10

The Hospira companies held the marketing authorization for and imported the pharmaceutical Docetaxel Hospira for Sweden. Aventis Pharam S.A. held three EP patents for Sweden and had in other jurisdictions claimed that Docetaxel Hospira infringed the EP patents (and in some jurisdictions requested and been granted ex parte preliminary injunctions). In preparation for the launch of the pharmaceutical in Sweden, the Hospira companies requested that the District Court of Stockholm should invalidate the patents for Sweden. Aventis first denied the request, referring inter alia to on-going settlement negotiations, but eventually admitted that the patents be invalidated. The only contentious issue for the Court to decide was therefore whether the Hospira companies should be reimbursed for its legal costs.

In its reasoning, the Court stated that a patent can only be invalidated by a court decision and that someone requesting an invalidity order therefore was forced to commence court proceedings irrespective of the patent holder's position. Thus it could not be considered an "unnecessary trial" for which a winning party may not be reimbursed for its legal costs under the Swedish Code of Judicial Procedure, irrespective of the fact that the writ of summons had been submitted without prior correspondence with the patent holder. Aventis was therefore order to reimburse the Hospira companies' "reasonable" costs, which was less than half of the total costs claim. The Court did not take any particular notice of Aventis' argument that it could have agreed to voluntarily cancel the patent which can be done by application to the Swedish Patent and Registration Office). 

Read the judgment (in Swedish) here.

Head note: Erik Ficks

SE - Time Bar for Damage Claims Clarified

The Swedish Supreme Court Clarifies the Law on Time Bar for Damages Claims, by Erik Ficks, Roschier

The case
The Swedish Supreme Court recently had the opportunity to provide guidance on the issue of time bar for damages claims in patent infringement cases (NJA 2011 s. 270). The case concerns a long-standing patent dispute between Lely Industries N.V. and Lely Sverige Aktiebolag, on the one side, and DeLaval International AB, on the other side. In this particular case, the Svea Court of Appeal had ruled that Lely had infringed DeLaval's patent for software included in milking robots. The Court of Appeal ordered Lely to pay DeLaval damages of in total 1.7 million SEK (roughly 170,000 EUR) based on compensation for loss of sales of four robots and for the use of three robots.

Read the entire contribution (in English) here.

Read the Supreme Court decision (in Swedish) here.
Read the District Court decision (in Swedish) here.  

SE - Occlutech v. AGA

Occlutech GmbH v. AGA Medical Corporation, AGA Medical Corporation v. Occlutech International AB and Tor Peters (private person), District Court of Stockholm, 4 March 2011, Docket No. T 18865-07 and T 4110-08 (joint cases)

Occlutech GmbH requested that the District Court should declare that it is free to sell its product in Sweden, irrespective of AGA Medical Corporation's EP patent for Sweden. The request was denied by AGA and, in response, AGA claimed that Occlutech's Swedish subsidiary (Occlutech International AB) and its chairman (Tor Peter) was guilty of infringement of AGA's patent (requesting an injunction and that examples of the product should be destroyed). The patent infringement case was denied.

In the District Court's assessment, AGA's alleged interpretation of the patent was more extensive than for which support could be found in the patent claims, in the patent description or from the patent application process. Due to the differences of the products, the District Court concluded that Occlutech's protect was outside the patent protection and also, consequently, that it did not infringe the patent. For the assessment of the alleged patent infringement, the Court also considered the doctrine of equivalents. However, neither on the basis of such assessment was the patent considered infringed.

Read the judgment (in Swedish) here.

Head note: Erik Ficks

SE - AstraZeneca v. Krka (esomeprazole)

AstraZeneca AB v. Krka Sverige AB, District Court of Stockholm, 4 February 2011, Docket No. T 16565-10

AstraZeneca raised a patent infringement claim against Krka's product Esomeprazol Krka and requested an injunction and damages as well as a search order for further evidence of the alleged infringement in October 2011. The circumstances are that Krka was granted a marketing authorisation for its product (manufactured in Slovenia) on 27 August 2010.  Krka had thereafter also been included in the Swedish pharmaceutical benefits scheme granted price and was intending to sell the product in Sweden. According to AstraZeneca, Krka's product was manufactured with a method in breach of AstraZeneca's EP patent in Sweden.

In pre-litigation correspondence, Krka had informed AstraZeneca that it was intending to start selling its product in Sweden within short (which also would require importing the products). However, Krka claimed that it was manufacturing its product with a method not in breach of the patent. The reason for AstraZeneca's request for a search order was to collect more evidence on the manufacturing method used by Krka so as to be able to show patent infringement. The evidence presented by AstraZeneca at that time was experiments conducted on Krka's product.

SE - Ferring v. Medac

Ferring International Center S.A v. Medac Gesellschaft für klinische Spezialpräparate G.m.b.H, Gebro Pharma G.m.b.H. v. Ferring International Center S.A, Medac Gesellschaft für klinische Spezialpräparate G.m.b.H v. Ferring International Center S.A, District Court of Stockholm, 31 March 2011, Docket No. T T 26687-06, T 1370-07 and T 15455-07 (joint cases)

Ferring International Center S.A was the holder of a Swedish patent granted in October 2006 for a pharmaceutical in tablet form (with desmopressin as active substance) and lodged a patent infringement claim against Medac Gesellschaft für klinische Spezialpräparate G.m.b.H for its marketing of the pharmaceutical Nocutil (manufactured by Gebro Pharma G.m.b.H.) in November 2006. In defence to the patent infringement claim, each of Medac Gesellschaft für klinische Spezialpräparate G.m.b.H and Gebro Pharma G.m.b.H. intitiated separate proceedings claiming that the patent was invalid in the first half of 2007. The District Court of Stockholm decided to hear the cases jointly.

The patent was declared invalid due to lack of inventive step. Also lack of novelty had been invoked, referring to tablets having been made publically available before the patent's priority date by delivery from Ferring to Sandoz. However, the Court concluded that Sandoz had undertaken not to transfer the information and that the existence of such confidentiality undertaking meant that the tablets could not be considered to have been made publically available. For the Court's assessment of inventive step, it concluded that the objective problem could be solved by further development of Ferring's previous products based on the common general knowledge in the art (i.e. the Handbook of Pharmaceutical Excipients, 3d ed., 2000 by Kibbe).

Furthermore, the Court declared in the infringement case (T 26687-06), in an intermediate judgment, that the disputed patent had been infringed by Medac (a defence of prior use was rejected). The assessment of whether the disputed patent had been infringed was done in an objective manner only, based on the hypothetical assumption that the patent was valid (either as granted or as amended). The remainder of the proceedings, including the trial of claims damages, were stayed awaiting a final judgment with regard to the validity of the patent.

Read the judgment (in Swedish) here.

Head note: Erik Ficks

SE - Välinge v. Pergo

Välinge Innovation AB v. Pergo (Europe) Aktiebolag, District Court of Stockholm, 24 January 2012, Docket No. T 19793-09

The Swedish developer of flooring technology, Välinge Innovation AB, raised an invalidity claim against a Swedish patent granted in 2005 for a locking system for floor panels held by Pergo (Europe) Aktiebolag. The invalidity claim was based on lack of both novelty and inventive step. Pergo denied the invalidity claim and held that the patent at least should be upheld in respect of the first patent claim as amended.

The District Court concluded that the invention was new, but declared it invalid due to lack of inventive step (also as amended). Compared to the matter cited in the state of the art, the alleged invention was considered merely a product of routine work by the person skilled in the art. Noticeable is the Court's several references to case law from the EPO and the EPO's Guidelines in its assessment of the disputed patent. This is another confirmation of the clear trend of Swedish Courts closely adhering to the practice of the EPO in its decision-making.

Read the judgment (in Swedish) here.

Head note: Erik Ficks