Two new patent courts for Sweden—and Swedish patents in English

Today, patent, trademark, copyright, competition and marketing law cases are divided between public courts (district courts, courts of appeal and the Supreme Court), general administrative law courts (administrative courts and the Supreme Administrative Court), and two specialised courts (Court of Patent Appeals and the Market Court).

The Swedish Court of Patent Appeals and the Market Court

The current divided system means that one has to handle a complex case (for example one involving patent disputes, design infringement and marketing law) in several parallel proceedings in different courts, which is not only time-consuming but also unnecessarily costly. The separation in court hierarchy also increases the risk of discrepancies in how legal provisions are applied.

The minister’s initiative led to a memorandum proposing a joint Patent and Market Court (PMC). A key objective is to centralise and improve judicial expertise in IP matters to enable more predictable and high-quality decisions. In the memorandum, it is stated that the low number of IP, marketing, and competition cases submitted to the courts, combined with their complex nature, calls for a uniform application of the relevant law carried out by a specialised set of courts. The centralisation of courts into a single system is also expected to save time and decrease the costs for both the public and litigants.

According to the proposal, the Stockholm District Court would act as the new PMC adjudicating in the first instance, the Svea Court of Appeal would act as a second instance, and the Swedish Supreme Court would, as the court of last instance, be responsible for the setting of precedents. If the proposal is implemented, the current Court of Patent Appeals and the Market Court will be dissolved.

However, there are issues and questions that have to be resolved before the PMC is implemented.

It is important that competence and capacity in patent cases does not decrease compared to the current system at the Court of Patent Appeals. It is necessary to keep a court that includes two technical members, at least one of whom has patent law expertise. Otherwise there is a risk of resulting judgments that are legally invalid and frequently appealed against.

For case management and dispute resolution to be effective, Swedish industry has requested that the new court also handle company trade secrets. These are indeed an important part of full IP protection, especially when it comes to software patents.

The new IP Court is planned to be up and running by July 1, 2015.

The Unified Patent Court

As for more international patent disputes, on March 4, 2014, Sweden, Lithuania, Latvia and Estonia became the first countries to agree on the creation of a regional division of the forthcoming Unified Patent Court (UPC). European Commissioner Michel Barnier said that he was “very pleased to see those countries taking the lead in setting up local and regional divisions of the court”.

The UPC, which is the proposed common patent court for those member states of the EU that signed up to it, will hear infringement and revocation proceedings relating to European patents, including unitary patents, that are valid in the territories of the participating states, with a single court ruling being directly applicable throughout those territories. The UPC’s first instance will consist of a central division, located in Paris, with sections in London and Munich, as well as local and regional divisions that can work in any of the official languages of the relevant states and/or designate another procedural language, such as English.

Finally, talking about “English”…

Sweden recently adopted the law that is necessary for the unitary patent to be introduced in the country. As a result, while an applicant who chooses to validate a European patent in Sweden will still have to file a Swedish translation of the patent claims, the Swedish translation will no longer have any legal effect. For national Swedish patent applications with a filing date of July 1, 2014 or later, the applicant can now both file and have the patent granted in English.

Maria Zamkova is chief executive officer of Fenix Legal. She can be contacted at: maria.zamkova@fenixlegal.eu