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SE – Preliminary injunctions in patent cases – update from Sweden

21 Jul 2019

Preliminary injunctions in patent cases – what is required for it to be found likely that a granted patent will not hold up in an assessment as to whether it is invalid?

By Hanna Tilus, Roschier and Hampus Rystedt, Zacco 

A preliminary injunction may be awarded in a patent case where the claimant is able to establish on the balance of probabilities that a patent infringement has occurred. In cases where the defendant has brought a declaratory judgment action that the patent is invalid, case law shows that there is a strong presumption that a granted patent is valid. The main reason for this presumption is that a patent will only be granted after a thorough assessment has been made during the administrative process.

According to the Swedish Patent and Market Court of Appeal (PMCA), there should also be a corresponding strong presumption that supplementary protection is valid.

So what is required to overturn the presumption? The burden is on the defendant (the potential infringer) to prove that, due to new circumstances or new evidence that were not taken into consideration during the assessment made at the time the patent was granted or due to flaws or errors in this decision, it is likely that the patent will be declared invalid. In certain circumstances, new case law concerning the granting or upholding of patents should also be capable of overturning the presumption of validity according to the PMCA .

Since the standard of proof in proceedings relating to an assessment of whether to grant a preliminary injunction is lower than that for the final assessment and the decision should not anticipate the final assessment, the reasons given for the decision should be limited. The assessment should be made promptly and generally be based on the written documentation submitted in the proceedings, which is significantly more limited than in the final assessment. Therefore, where a request is made for a preliminary injunction, the assessment at this stage is preliminary and only an elementary assessment should be made as to whether on the balance of probabilities an infringement has occurred.

We have looked in detail at four cases from the PMCA that shed further light on this issue.

The entire contribution can be read here.

The Swedish Patent and Market Court of Appeal (PMCA) cases referred to in the text can be read here:

PMCA 10991-18

PMCA 12172-18

PMCA 4865-18

PMCA 3565-17