SE001: Patents, Act (Consolidation), 01/12/1967 (1993), No. 837 (No. 1406)
THE SWEDISH PATENTS ACT
Translated into English
(Act No. 837 of 1967, as amended by Acts Nos. 149 of 1978, 433 of 1983, 937 of 1984, 233, 1156 of 1986, 1330 of 1987, 296 of 1991, 1688 of 1992 and 1406 of 1993)
Chapter I: General Provisions
1. Anyone who has made an invention which is susceptible of industrial application, or his successor in title, is entitled pursuant to Chapters I to X of this Act to obtain, upon application, a patent for the invention in this country and thereby acquire an exclusive right to exploit the invention commercially. Provisions concerning European patents are given in Chapter XI.
The following shall never be regarded as an invention: that which is merely
(1) a discovery, scientific theory or mathematical method;
(2) an aesthetic creation;
(3) a scheme, rule or method for performing mental acts, for playing games or for doing business, or a program for computers;
(4) a presentation of information.
Methods for surgical or therapeutic treatment or diagnostic methods, practised on humans or animals, shall also not be regarded as inventions. This provision does not, however, prevent the granting of patents for products, including substances and compositions of substances, for use in methods of this type.
Patents shall not be granted for
(1) inventions the use of which would be contrary to morality or public order;
(2) plant or animal varieties or essentially biological processes for the production of plants or animals; patents may, however, be granted for microbiological processes and products resulting from such processes.
2. Patents are only granted for inventions which are new in relation to what was known before the filing date of the patent application and which also differ essentially therefrom.
Everything made available to the public in writing, in lectures, by public use or otherwise shall be considered as known. Also the contents of a patent application filed in this country before said filing date shall be considered as known if that application becomes available to the public pursuant to Section 22. The condition in the first paragraph that the invention must differ essentially from what was known before the filing date of the patent application does not, however, apply in respect of the contents of such application.
Provisions stating that, when applying the second paragraph, an application referred to in Chapters III or XI in certain cases has the same effect as a patent application filed in this country, are to be found in Sections 29, 38 and 87.
The stipulation in the first paragraph that the invention shall be new does not prevent the granting of a patent for a known substance or a known composition of substances for use in a method referred to in Section 1, third paragraph, provided of the substance or composition is not known in methods of this type.
A patent may be granted despite the fact that the invention was made available to the public within six months prior to the filing of the application,
(1) in consequence of evident abuse in relation to the applicant or his predecessor in title, or
(2) because the invention was displayed by the applicant or his predecessor in title at an official, or officially recognized, international exhibition falling within the terms of the Convention on International Exhibitions signed at Paris on November 22, 1928.
3. The exclusive right conferred by a patent implies, with the exceptions stated below, that no one, without the proprietor's consent, may use the invention by
(1) making, offering, putting on the market or using a product protected by the patent or importing or possessing such product for these purposes;
(2) using a process which is protected by the patent or, knowing, or it being obvious from the circumstances that the use of the process is prohibited without the consent of the proprietor of the patent, offering the process for use here in Sweden;
(3) offering, putting on the market, or using products made by a process protected by the patent or importing or possessing the product for these purposes.
The exclusive right also implies that no one, without the consent of the proprietor of the patent, exploit the invention by offering or supplying a person who is not entitled to exploit the invention with such means for carrying out the invention here in Sweden which relates to an essential element of the invention, if the person offering or supplying the means knows, or it is obvious from the circumstances, that said means are suited and intended for use in carrying out the invention. If the means are a generally available commercial product, this paragraph only applies if the person offering or supplying the means attempts to induce the receiver to commit acts referred to in the first paragraph. In applying the provisions of this paragraph, persons using the invention in a manner specified in paragraph three, points (1), (3) or (4), shall not be considered as entitled to exploit the invention.
The following are excepted from the exclusive right:
(1) use which is not commercial;
(2) use of a product protected by the patent which is put on the market within the European Economic Area by the proprietor of the patent or with his consent:
(3) use of the invention for experiments which relate to the invention itself;
(4) preparation in a pharmacy of a medicine in accordance with a physician's prescription in individual cases or acts with the medicine so prepared.
4. Anyone who, at the time when the application for a patent was filed, was using the invention commercially in this country may, notwithstanding the patent, continue such use while retaining its general character, provided the use did not constitute evident abuse in relation to the applicant or his predecessor in title. Such right of use shall also be due on corresponding conditions to anyone who had made substantial preparations for commercial use of the invention in this country.
The right according to the preceding paragraph can only be passed to others together with the business in which it originated or in which the use was intended to take place.
5. Notwithstanding the grant of a patent, an invention may be utilized on a foreign vessel, aircraft, or other foreign means of communication for its own needs when temporarily entering this country in regular traffic or otherwise.
The Government may decree that, notwithstanding the grant of a patent, spare parts and accessories for aircraft may be imported into this country and used here for the repair of aircraft of a foreign country in which corresponding privileges are granted to Swedish aircraft.
6. An application for a patent for an invention which was disclosed, within twelve months prior to the filing date, in an application for a patent in this country or for a patent, inventor's certificate or utility model protection in a foreign country adhering to the Paris Convention for the Protection of Industrial Property of March 20, 1883, shall, when applying Section 2, first, second and fourth paragraphs, and Section 4, be deemed to have been filed simultaneously with the earlier application if the applicant so demands. Such priority may also be enjoyed from an application for protection which does not relate to a country adhering to the Convention, if corresponding priority from Swedish applications is granted where the earlier application was filed and if legislation in force there essentially corresponds to the Convention.
The Government or, as the Government determines, the Patent Authority, shall stipulate in what order a claim to priority shall be presented and what documents must be presented in support of such claim. If these stipulations are not observed, priority shall not be enjoyed.
Chapter II: The Processing of Swedish Patent Cases
7. The Patent Authority in this Act refers to the Patent Authority in this country unless otherwise stated. The Patent Authority in this country is the Patent and Registration Office.
8. An application for a patent must be made in writing and filed with the Patent Authority or, in the case referred to in Chapter III, with a patent authority in a foreign country or with an international organization.
The application shall contain a description of the invention, also comprising drawings if such are necessary, and a distinct statement of what is sought to be protected by the patent (patent claims). The fact that the invention relates to a chemical compound does not imply that a specified use must be disclosed in the patent claim. The description shall be so clear as to enable a person skilled in the art to carry out the invention with the guidance thereof. An invention which relates to a microbiological process or a product of such a process shall, in those cases specified in Section 8a, be considered to be disclosed with sufficient clarity only if the requirements in said section are also fulfilled.
The application shall also contain an abstract of the description and claims. The abstract shall merely serve as technical information and it may not be taken into account for any other purpose.
The inventor's name shall be stated in the application. If a patent is applied for by someone other than the inventor, the applicant shall prove his title to the invention.
The applicant shall pay a prescribed application fee. For the application, a prescribed annual fee must also be paid for each fee year beginning before the application is finally decided on.
A fee year according to this Act spans one year and is counted the first time from the day when the application was filed or shall be considered to have been filed, and thereafter from the corresponding day according to the calendar.
8a. If in the carrying out of an invention a microorganism is to be used which is neither available to the public nor can be described in the application documents so as to enable a person skilled in the art to carry out the invention with the guidance thereof, a culture of the organism shall be deposited no later than the date of filing of the application. The culture shall thereafter be continuously on deposit so that he who is entitled under this Act to receive samples from the culture, can receive his sample delivered in Sweden. The Government specifies where deposits may be made.
If a deposited culture ceases to be viable or if samples from the culture cannot be supplied for other reasons, it may be replaced by a new culture of the same organism within the time period and otherwise in the manner prescribed by the Government. If this has been done, the new deposit shall be considered as having been made on the day when the earlier deposit was made.
10. Patents for two or more mutually independent inventions may not be applied for in a single application.
11. If a patent is sought for an invention disclosed in a patent application filed earlier by the applicant and not finally decided upon, the later application shall, on conditions laid down by the Government, be regarded as filed at the time when the documents disclosing the invention were filed with the Patent Authority, if the applicant so demands.
12. An applicant who is not domiciled in this country shall have an agent residing here who shall be entitled to represent him in all matters concerning the application.
13. The application for a patent must not be amended so as to claim protection for subject matter which did not appear in the application at the time when it was filed, or shall be considered to have been filed pursuant to Section 14.
14. If the applicant amends the application within six months from the date of filing, the application shall be considered to have been filed at the time when the amendment was made, if the applicant so requests.
A request under the first paragraph must be made within two years from the date of filing of the application. Such a request can be made only once and cannot be withdrawn.
15. If the applicant has not complied with the requirements regarding the application, or if the Patent Authority finds other obstacles to the allowance of the application, the applicant shall be notified thereof and be requested within a specified term to render a statement or to make corrections. The Patent Authority may, however, without consulting the applicant, make such changes in the abstract as it deems necessary.
If the applicant fails, within the stipulated term, to render a statement or to take measures to overcome the objections raised, the application shall be dismissed. Notice of this shall be given in the official action.
A dismissed application will be reinstated if, within four months from the expiration of the specified term, the applicant submits a statement or takes measures to overcome the objections and, within the same term, pays the prescribed resuming fee.
If the applicant does not pay the annual fee according to Sections 8, 41 and 42, the application shall be dismissed without a preceding ion. Such a dismissed application cannot be reinstated.
16. If, after the applicant has submitted his statement, there are still obstacles to the allowance of the application, and the applicant has had an opportunity to submit a statement on the obstacles, the application shall be rejected, unless there are found reasons to give the applicant another official action.
17. If anybody claims before the Patent Authority that the proper title to the invention rests with him and not with the applicant, and if the case is deemed uncertain, the Patent Authority may direct him to bring action before a Court of law within a certain time at the risk of the claim being disregarded in the further examination of the patent application.
If a litigation regarding the proper title to the invention is pending before the Court, the patent application may be declared in abeyance until the litigation is finally settled by the Court.
18. If anybody proves to the satisfaction of the Patent Authority that the proper title to the invention rests with him and not with the applicant, the Patent Authority shall transfer the application to him, if he so requests. The transferee shall pay a new application fee.
If a request for transfer has been made, the application may not be dismissed, rejected or allowed until the request has been finally decided upon.
19. If the application is complete and no obstacles to a patent are found, the Patent Authority shall notify the applicant that a patent can be granted.
Within two months of the date of notification, the applicant shall pay a fixed grant fee. In default of this, the application shall be dismissed. The processing of a dismissed application shall be resumed if, within four months after the expiration of the two months, the applicant pays the grant fee and a fixed resuming fee.
If a patent is sought by an inventor who has considerable difficulty in paying the grant fee, the Patent Authority may exempt him from this obligation, if he makes a written request to that effect within two months of the date of notification. If the Patent Authority rejects the inventor's request, a fee paid within two months thereafter shall be considered as being paid within the proper time limit.
20. If the applicant has fulfilled the requirements of Section 19 and there is still no obstacle to a patent, the Patent Authority shall grant the application. The decision shall be announced.
When the decision to grant the patent application has been announced, a patent has been granted. A granted patent shall be recorded in the Register of Patents kept by the Patent Authority. A patent letter shall also be issued.
After the patent has been granted, the claims may not be amended so that the scope of patent protection is broadened.
21. From the day when the patent is granted, a patent specification shall be available at the Patent Authority. The patent specification shall contain a description, patent claims and an abstract as well as giving the patent proprietor and the inventor.
22. From the day when the patent is granted, the documents in the case shall be available to anyone.
When eighteen months have passed from the filing date of the patent application, or, if priority is claimed, the date from which priority is claimed, the documents, if they have not already been made available pursuant to the first paragraph, shall be made available to anyone. However, if the application has been dismissed or rejected, the documents shall be made available only if the applicant requests that the application be resumed, appeals, or makes a request under Section 72 or 73.
At the request of the applicant, the documents shall be made available earlier than what is set out in the first and second paragraphs.
When the documents become available pursuant to the second or third paragraph, this fact shall be announced.
If a document contains a business secret and does not concern the invention for which a patent is sought or has been granted, the Patent Authority, upon request and if there are special reasons for this, may order that the document shall not be made available. If such a request has been made, the document shall not be made available until the request has been refused by a decision which has taken legal effect.
If a culture of a microorganism has been deposited according to Section 8a, any person has the right to obtain a sample from the culture after the documents have become available to anyone in accordance with the first, second or third paragraph. This does not mean, however, that samples shall be issued to anyone who in consequence of provisions in a law or other ordinance may not handle the deposited microorganism. Nor does this mean that samples shall be issued to anyone whose handling of the sample can be assumed to involve an evident risk in view of the harmful properties of the organism.
Until the patent has been granted or the patent application has been finally decided on without resulting in a patent, if the applicant so requests, despite the provisions of the sixth paragraph, first sentence, samples from the deposit may only be issued to a special expert. The Government prescribes within what time period such a request may be made and who may be called on as an expert by a person wishing to obtain a sample.
A person wishing to obtain a sample shall make a written request therefor with the Patent Authority and render a commitment to the effect prescribed by the Government to prevent the misuse of the sample. If samples may be issued only to a special expert, the commitment must instead be rendered by said expert.
23. If the Patent Authority dismisses or rejects an application which has become available to anyone, this decision shall be announced when it has taken legal effect.
24. Anyone may file an opposition to a granted patent. An opposition shall be made in writing with the Patent Authority within nine months from the day on which the patent was granted.
The Patent Authority shall inform the proprietor of the patent of the opposition and give him an opportunity to make a statement. The provisions of Section 12 shall also apply to the patent proprietor during the opposition process.
If the opposition is withdrawn, the opposition process may still be completed if there are particular reasons.
25. The Patent Authority shall revoke the patent after opposition if it
1. was granted despite the fact that the conditions of Sections 1 and 2 are not fulfilled,
2. relates to an invention which is not so clearly disclosed that a person skilled in the art can carry it out with the guidance thereof, or
3. encompasses matter which was not evident from the application as filed.
The Patent Authority shall reject the opposition if there is no obstacle pursuant to the first paragraph to the maintenance of the patent.
If during the opposition process the proprietor of the patent has made such amendments that there is no obstacle pursuant to the first paragraph to the maintenance of the patent in its amended wording, the Patent Authority shall declare the patent to be maintained in its amended wording.
When the decision of the Patent Authority concerning an opposition has taken legal effect, it shall be announced. If the decision involves amendment of the patent, a new patent specification shall be available at the Patent Authority and a new patent letter shall be issued.
26. A final decision by the Patent Authority concerning an application for a patent may be appealed by the applicant if the decision is not in his favour. A final decision concerning an opposition against a patent is appealable by the proprietor of the patent and by the opposer, if the decision is adverse to the party wishing to appeal. If the opposer withdraws his appeal, it may still be considered if there are particular reasons.
A decision whereby a request for reinstatement under Section 15, third paragraph, or Section 19, second paragraph, has been rejected or a request for transfer under Section 18 has been granted may be appealed by the applicant. A decision rejecting a request for transfer under Section 18 may be appealed by the party who made the request.
A decision rejecting a request for an order according to Section 22, fifth paragraph, may be appealed by the one who made the request.
27. Appeals according to Section 26 are made with the Court of Patent Appeals within two months of the date of the decision.
A final decision by the Court of Patent Appeals may be appealed against to the Supreme Administrative Court within two months from the date of the decision. The appeal may not relate to any other patent claims than those considered in the appealed decision. In other respects, the rules in Sections 35-37 of the Code of Administrative Procedure (1971:291) concerning appeals against decisions by the Administrative Court of Appeal shall apply. Decisions by the Court of Patent Appeals shall state that special leave is required for consideration of appeals to the Supreme Administrative Court and the grounds on which such leave is granted.
The provisions of Section 22, fifth paragraph, shall apply to documents which are submitted to the Court of Patent Appeals or the Supreme Administrative Court.
Chapter III: International Patent Applications
28. An international patent application refers to an application made pursuant to the Patent Cooperation Treaty done at Washington on June 19, 1970.
An international patent application shall be filed with a patent authority or international organization which is authorized according to the Patent Cooperation Treaty and its Regulations to receive such applications (receiving Office). The Swedish Patent Authority shall be a receiving Office in accordance with the stipulations by the Government. The applicant shall pay the prescribed fee for an international patent application which is filed with the Swedish Patent Authority.
The provisions of Section 29 to 38 apply to international patent applications designating Sweden. If, however, a European patent for Sweden is applied for by such application, Chapter XI shall apply.
29. An international patent application which the receiving Office has accorded an international filing date shall have the same effect in this country as a Swedish patent application filed on the same day. The provisions of Section 2, second paragraph, second sentence, however, shall only apply to an application which has been pursued in accordance with Section 31.
31. If the applicant desires to pursue an international patent application for Sweden, he shall within 20 months from the international filing date, or if priority is claimed, the date from which priority is claimed, file with the Patent Authority a translation into Swedish of the international patent application to the extent required by the Government or, if the application is written in Swedish, a copy of the application. The applicant shall, within the same time period, pay the prescribed fee to the Patent Authority.
If the applicant has demanded that the international application be subjected to international preliminary examination and if he has, within 19 months from the date given in the first paragraph, declared his intention, in accordance with the Patent Cooperation Treaty and its Regulations, to use the result of the international preliminary examination in applying for a patent for Sweden, he shall fulfill the requirements in the first paragraph within 30 months from said date.
If the applicant has paid the prescribed fee within the time limit stipulated in the first or second paragraph, the required translation or copy may be filed within an additional time limit of two months, provided that a prescribed additional fee is paid within the latter time limit.
If the applicant does not observe the requirements in this section, the application shall be considered to be withdrawn as regards Sweden.
32. If the applicant withdraws the demand for international preliminary examination or the declaration of his intention to use the result of such examination in applying for a patent for Sweden, the international patent application shall be considered withdrawn as regards Sweden, unless the withdrawal is made before the end of the time limit stipulated in Section 31, first paragraph, and the applicant also pursues the application within the time limit stipulated in Section 31, first or third paragraph.
33. If an international patent application has been pursued in accordance with Section 31, then Chapter II applies in respect of the application and its processing unless otherwise specified in this Section or in Sections 34 to 37. Only at the request of the applicant, however, may the application be taken up for examination before the end of the time limit applicable according to Section 31, first or second paragraph.
The obligation according to Section 12 to have an agent residing here shall first apply when the application may be taken up for examination.
The provisions of Section 22, second and third paragraphs, become applicable even before the application has been pursued, as soon as the applicant has complied with the obligation under Section 31 to file a translation of the application or, if the application is written in Swedish, as soon as the applicant has filed a copy of the application with the Patent Authority.
For international patent applications, in applying Sections 48, 56 and 60, the statements therein that the documents in the application file have become available according to Section 22 shall instead mean that the documents have become available according to Section 22, third paragraph.
If the patent application fulfills the requirements concerning form and content prescribed in the Patent Cooperation Treaty and its Regulations, it shall be accepted in these respects.
34. For an international patent application, the Patent Authority may not grant a patent or make a decision to reject before the end of the time limit stipulated by the Government, unless the applicant agrees to an earlier ruling on the application.
35. For an international application, the Patent Authority may not, without the consent of the applicant, grant a patent or make the application publicly available before it has been published by the International Bureau of the World Intellectual Property Organization or twenty months have passed from the international filing date or, if priority is claimed, the date from which priority is claimed.
36. If a part of an international patent application was not subjected to international search or international preliminary examination because the application was found to encompass mutually independent inventions and because the applicant did not pay, within the prescribed time limit, the additional fee according to the Patent Cooperation Treaty, the Patent Authority shall determine whether said finding was correct. If the Patent Authority determines that the finding was correct, that part of the application which was not subjected to such search or examination shall be considered withdrawn from the Patent Authority if the applicant does not pay the prescribed fee to the Patent Authority within two months from when the Patent Authority mailed to him notification of its decision. If the Patent Authority determines that the finding was not correct, the Patent Authority shall proceed with the examination of the application in its entirety.
A decision pursuant to the first paragraph, whereby the Patent Authority has determined that the patent application encompasses mutually independent inventions, may be appealed by the applicant. The provisions of Section 27, first and second paragraphs apply.
If the Court finds the decision of the Patent Authority to be correct, the time limit for payment of such fee as referred to in the first paragraph, second sentence, shall be computed from the date when the Patent Authority mailed to the applicant notification of the final decision of the Court.
37. If a part of an international patent application has not been subjected to international preliminary examination because the applicant restricted the claims after being invited by the authority for such examination to either restrict the claims or pay additional fees, that part of the application which has not been examined shall be considered withdrawn at the Patent Authority if the applicant does not pay the prescribed fee within two months after the Patent Authority mailed to him a notification to that effect.
38. If the receiving Office has refused to accord an international patent application an international filing date or has declared that the application shall be considered withdrawn or that the request that the application shall designate Sweden shall be considered withdrawn, the Patent Authority shall, at the request of the applicant, review said decision. The same shall apply in respect of a decision by the International Bureau that the application shall be considered withdrawn.
A petition for review pursuant to the first paragraph shall be filed with the International Bureau within the time limit stipulated by the Government. Within the same time limit, the applicant shall file with the Patent Authority a translation of the application to the extent stipulated by the Government and pay the prescribed application fee.
If the Patent Authority finds that the decision of the receiving Office or International Bureau was incorrect, the Patent Authority shall process the application according to Chapter II. If an international filing date has not been accorded by the receiving Office, the application shall be considered to have been filed on the date which the Patent Authority deems should have been accorded as the international filing date. If the application fulfills the requirements as to form and content prescribed in the Patent Cooperation Treaty and its Regulations, it shall be accepted in these respects.
The prescription in Section 2, second paragraph, second sentence, shall apply to an application which has been taken up for processing pursuant to the third paragraph if the application becomes generally available pursuant to Section 22.
Chapter IV: The Extent and Term of the Patent
39. The extent of patent protection shall be determined by the patent claims. In construing the patent claims guidance may be taken from the description.
40. A granted patent may be kept in force until twenty years have passed from the day when the patent application was filed.
For patents, a prescribed annual fee shall be paid for each fee year beginning after the grant. If the patent has been granted before annual fees for the patent application have begun to become due under Section 41, the proprietor of the patent shall in any case, when the annual fee for the patent becomes due for payment for the first time, pay as well the annual fees for fee years beginning prior to grant of the patent.
The provisions concerning supplementary protection for medicinal products are to be found in Chapter XIII.
Chapter V: Payment of Annual Fees
41. The annual fee shall be due for payment on the last day of the calendar month during which the fee year begins. The annual fees for the first two fee years, however, shall not be due until the fee for the third fee year is due. Annual fees may not be paid earlier than six months before becoming due for payment.
For such a later application as is referred to in Section 11, the annual fees for fee years which have begun before the date on which the later application was filed or which begin within two months from said date, shall in no case be due before two months have passed from said date. For an international patent application, the annual fees for fee years which have begun before the date when the application was pursued in accordance with Section 31 or was taken up for processing pursuant to Section 38 or which begin within two months from said date, shall not in any case be due before two months have passed from the date when the application was prosecuted or was taken up for processing.
An annual fee, together with the prescribed increase, may be paid within six months after the due date.
42. If the inventor is the applicant or proprietor of the patent and if he has considerable difficulty in paying the annual fees, the Patent Authority may give him a respite for payment if he makes a request to that effect not later than when the annual fees become due for the first time. Respites may be given for up to three years at a time, but at most until three years have passed from the grant of the patent. A request for extended respite must be made before the given respite has expired.
If a request for respite or extended respite is refused, a fee paid within two months thereafter shall be considered to have been paid on time.
Annual fees, for the payment of which respite has been given under the first paragraph, may be paid together with the same increase as referred to in Section 41, third paragraph, within six months after the time until which respite has been obtained.
Chapter VI: Licenses, Assignments, etc.
43. If the proprietor of a patent has granted another party the right to exploit an invention commercially (license), the licensee may assign his right to others only if an agreement has been made to that effect.
44. If a patent has been transferred to another party or a license has been granted, this shall, upon request, be recorded in the Register of Patents.
If it is proved that a license recorded in the Register has ceased to be valid, the records of the license shall be cancelled from the Register.
The provisions of the first and second paragraphs shall apply correspondingly to compulsory licenses and rights referred to in Section 53, second paragraph.
In lawsuits or other legal cases concerning a patent, that party shall be regarded as the proprietor of the patent who was last entered in the Register of Patents in such capacity.
45. If three years have passed since the patent was granted and, in addition, four years have passed since the patent application was filed and the invention is not worked in this country to a reasonable extent, anyone who desires to work the invention in this country may obtain a compulsory license to that effect if acceptable excuses for the failure to work the invention are lacking.
On condition of reciprocity, the Government may decree that in applying the first paragraph, working in a foreign country shall be considered equivalent to working in this country.
46. The proprietor of a patent for an invention, the exploitation of which is prevented by a patent owned by another party, may obtain a compulsory license to exploit the invention protected thereby if this is reasonable in view of the importance of the first-named invention or for other particular reasons.
The proprietor of a patent for which a compulsory license has been granted according to the first paragraph may obtain a compulsory license to exploit the other invention, unless there are particular reasons to the contrary.
47. When required by public interests of extreme importance, anyone who desires to make commercial use of an invention for which another party holds a patent may obtain a compulsory license to that effect.
48. Any person who in this country was commercially exploiting an invention which is the subject of a patent application, when the application documents were made available in accordance with Section 22, shall be entitled, if the application matures into a patent, to obtain a compulsory license for the said use if very special reasons speak in its favour and if he had no knowledge of the application and had not reasonably been able to obtain such knowledge. Under corresponding conditions such right shall also be granted to anyone who has made substantial preparations for commercial exploitation of the invention in this country. Such compulsory license may also apply in respect of a period of time before the patent was granted.
49. A compulsory license may be granted only to a party who may be presumed to have resources to utilize the invention in an acceptable manner and in accordance with the license.
A compulsory license shall not prevent the proprietor of the patent himself from utilizing the invention or from granting licenses. A compulsory license can only be transferred to others together with the business in which it is utilized or is intended to be utilized.
50. Compulsory licenses shall be granted by the court, which shall also decide to what extent the invention may be utilized and shall establish the remuneration and other terms of the license. When substantially changed circumstances call for it, the Court may, on request, revoke the license or lay down new terms therefor.
Chapter VII: Termination of the Patents, etc.
51. If an annual fee for a patent is not paid pursuant to the provisions of Sections 40, 41 and 42, the patent shall lapse as of the beginning of the fee year for which the fee has not been paid.
52. If an action is brought to that effect, the Court shall declare the patent invalid, if
1) the patent was granted in spite of the fact that the conditions of Sections 1 and 2 are not fulfilled.
2) the patent relates to an invention the description of which is not sufficiently clear to enable a person skilled in the art to carry out the invention with the guidance thereof,
3) the patent comprises subject matter not appearing in the application as filed, or
4) the scope of patent protection has been extended after the grant of the patent.
A patent shall not be declared invalid on the grounds that the one who has obtained the patent was only entitled to a certain share thereof.
Except as provided for in the fourth paragraph, court action may be brought by anyone who suffers damage from the patent and, if called for by the public interest, by the public authority designated by the Government.
An action brought on the grounds that a patent has been granted to a party other than the one who is entitled to obtain the patent under Section 1 can only be brought by the one who claims to be so entitled. An action shall be brought within one year after obtaining knowledge of the grant of the patent and of other facts on which the action is based. If the proprietor of the patent was in good faith when the patent was granted or when it was assigned to him, the action cannot be brought later than three years after the grant of the patent.
53. If a patent has been granted to a party other than the one who is entitled to the patent according to Section 1, the Court, upon an action brought by the one who is entitled to the patent, shall transfer the patent to him. With respect to the time within which the action shall be brought, the regulations in Section 52, fourth paragraph, shall apply.
If the party who is deprived of the patent has in good faith begun to use the invention commercially in this country or made substantial preparations therefor, he shall be entitled, against a reasonable remuneration and on other reasonable terms, to continue the use already begun or to implement the prepared use while retaining its general character. Under corresponding conditions such rights shall also be due to holders of licenses recorded in the Register of Patents.
Rights under the second paragraph can only be transferred to others together with the business in which they were used or in which was intended to use them.
54. If the proprietor of a patent renounces the patent in writing to the Patent Authority, the Authority shall declare the patent terminated.
If the patent is seized for debt or if there is a litigation pending for the transfer of the patent, the patent may not be declared terminated as long as the seizure is effective or until the litigation has been finally settled.
55. When a patent has lapsed or been declared terminated, or been declared invalid or transferred by a judgment which has taken legal effect, the Patent Authority shall announce this.
Chapter VIII: Obligation to Give Information
56. If a patent applicant cites the application against another party before the documents in the application file have become available according to Section 22, he shall be obliged, upon request, to consent to give said party access to the documents. If the patent application includes a deposit of a culture of a microorganism as referred to in Section 8a, the consent shall also encompass the right to obtain a sample of the culture. The provisions of Section 22, sixth paragraph, second and third sentences, as well as the seventh and eighth paragraphs, apply when someone desires to obtain a sample on the basis of such consent.
Anyone who indicates, either by addressing himself directly to another, or in advertisements, or by inscription on the goods or their packaging, or in any other way, that a patent has been applied for or granted, without at the same time giving the serial number of the application or the patent, shall be obliged, upon request, to provide said number without delay. If it is not stated expressly that a patent has been applied for or granted, but circumstances are liable to create the impression that this is the case, then upon request, information as to whether a patent has been applied for or granted shall be given without delay.
Chapter IX: Liability and Obligation to Pay Compensation, etc.
57. If anyone infringes the exclusive right conveyed by a patent (patent infringement), and if the infringement is committed deliberately, he shall be sentenced to a fine or imprisonment for a maximum period of six months. Anyone who has violated a prohibition under Section 57a may not be sentenced to punishment for infringement encompassed by the prohibition. The indictment for this offense may be brought by the Public Prosecutor only at the instance of the aggrieved party and if the indictment is for particular reasons required in the public interest.
57a. At the instance of the patent proprietor or of one having the right under license to use the invention, the Court may prohibit under penalty of a fine a patent infringer from continued infringement.
If the plaintiff shows probable cause that there is infringement, and if there is good reason to believe that the defendent, by continued infringement, will depreciate the value of the exclusive right provided by the patent, the Court may issue a prohibition under penalty of a fine for the period until the case has been finally decided or another ruling has been made. Before such a prohibition is issued, the defendent shall have been given an opportunity to respond, if there is no risk in delay.
A prohibition pursuant to the second paragraph may only be granted if the plaintiff provides security with the Court for damage which may be caused to the defendent. If the plaintiff lacks the means to provide such security, the Court may release him from this obligation. Concerning the nature of the security, Chapter 2, Section 25 of the Debt Recovery Act shall apply. The security shall be examined by the Court if it has not been accepted by the defendent.
When the case is decided, the Court shall consider whether a prohibition issued pursuant to the second paragraph shall still remain in force.
As regards appeals against decisions made pursuant to the second or third paragraph and as regards consideration by higher courts, the provisions of the Code of Judicial Procedure concerning appeals against decisions under Chapter 15 of the Code of Judicial Procedure shall apply.
The request for imposition of a fine must be made by the party who applied for the prohibition. Together with such a request, an application for a new prohibition under penalty of a fine may be made.
58. Anyone who commits patent infringement deliberately or through negligence shall pay a reasonable compensation for the use of the invention as well as compensation for further damage which the infringement has caused. When determining the size of the compensation, consideration shall also be taken of the patent proprietor's interest in not having the patent be infringed and of other circumstances of other than purely economic importance.
If anyone commits patent infringement that is not deliberate or due to negligence, he shall pay compensation for the use of the invention insofar as this is found reasonable.
An action for compensation for patent infringement may only cover damage during the last five years before the action was brought. For damage suffered during the time before that, the right to compensation shall be lost.
59. On a motion by the party suffering patent infringement, the Court may order, to the extent this is found reasonable in order to prevent further infringement, that patented products manufactured without the consent of the proprietor of the patent, or objects use of which would imply patent infringement, shall be altered in a specific manner, or be impounded for the remainder of the patent term, or be destroyed or, in the case the patented products, be surrendered against payment for their value to the party who suffered the infringement. The above stipulation shall not apply to a party who has acquired the property or a special right thereto in good faith and who has not himself committed patent infringement.
The property dealt with in the first paragraph may be seized if the offense mentioned in Section 57 can reasonably be assumed to have been committed. In that case the general rules on seizure in criminal cases shall apply.
Without prejudice to the provisions of the first paragraph, the Court, if there are very special reasons, may order on a motion to that effect that the possessor of property contemplated in the first paragraph shall have the right of disposition over the property during the remainder of the patent term or part thereof against reasonable compensation and on other reasonable conditions.
60. If an invention for which a patent is sought is used commercially after the documents in the application file have become available according to Section 22, the stipulations on patent infringement shall apply to the extent that the application results in a patent. For the period before the patent was granted under Section 20, however, the patent protection shall only extend to that revealed in both the claims as worded when the application became publicly available and the claims according to the patent. Punishment shall not be imposed, and damages in consequence of use before the patent was granted may only be adjudged under Section 58, second paragraph.
The provisions of Section 58, third paragraph, shall not apply if the action for compensation is brought no later than one year after the term for opposition has expired or, if opposition has been made, no later than one year after the Patent Authority ruled that the patent was to be maintained.
61. If a patent has been revoked or has been declared invalid by a judgment that has taken legal effect, the Court may not, under Sections 57 to 60, sentence to punishment, issue a prohibition under penalty of a fine, order payment of a fine or compensation or order precautionary measures to be taken.
If court action concerning patent infringement is brought and if the party against whom the action is brought claims that the patent is invalid, the question of invalidity may only be considered after court action to this effect has been brought. The Court shall order the party asserting that the patent is invalid to bring such action within a certain period of time.
If patent infringement action and patent invalidity action are brought in the same court proceedings and if it is suitable with regard to the inquiry to decide independently the question of whether there is patent infringement, a separate judgment may be rendered in this question at the request of one of the parties. If a separate judgment is rendered, the Court may decide that the case concerning invalidity shall be held in abeyance until the judgment has taken legal effect.
62. Anyone who omits deliberately or by negligence which is not of a minor nature to carry out what is required of him pursuant to Section 56 shall be sentenced to a fine.
Such penalty shall also be imposed on a party who deliberately or by negligence which is not of a minor nature gives false information in instances covered by the abovementioned Section, unless punishment for such acts is provided for in the Penal Code.
Anyone who omits deliberately or by negligence to carry out what is required of him pursuant to Section 56 or gives false information in instances contemplated in that Section shall pay proper damages. If there is only minor negligence, the compensation may be adjusted accordingly.
Indictments for the offenses contemplated in the first and second paragraphs may be brought by the Public Prosecutor only at the instance of the aggrieved party and if the indictment is for particular reasons required in the public interest.
63. A proprietor of a patent or a party who is authorized to use the invention under a license is entitled to bring an action for a declaratory judgment to establish whether he enjoys protection against another party on the basis of the patent, if there is uncertainty in this respect and this is prejudicial to him.
A party who carries on or intends to carry on an activity may bring an action against the proprietor of the patent on the same conditions in order to establish whether a specific patent constitutes an obstacle to the said activity.
If it is alleged in the cases mentioned in the first paragraph that the patent is invalid, the provisions of Section 61, second paragraph, shall apply correspondingly.
64. Anyone who desires to bring action for invalidating a patent, or for transfer of a patent or for the grant of a compulsory license shall report this to the Patent Authority and shall also notify everyone who holds, according to the Register of Patents, a license under or a pledge of the patent. If a licensee desires to bring action for patent infringement or for establishment under Section 63, first paragraph, he shall notify the proprietor of the patent of this fact. The same applies if a pledgeholder desires to bring action because of patent infringement.
Information stipulated in the first paragraph shall be considered to have been given when the information has been sent in a prepaid registered letter to the addresses entered in the Register of Patents.
If it is not shown when the action is brought that report or notification has been made pursuant to the provisions of the first paragraph, the plaintiff shall be given a respite to do so. If he does not avail himself of this respite, his action shall not be taken up for consideration.
65. The City Court of Stockholm shall be the proper court for litigation which concerns
(1) the proper title to an invention for which a patent is sought,
(2) the invalidation or transfer of a patent,
(3) the grant of compulsory licenses, the laying down of new conditions for, or the revocation of such licenses, or rights which are referred to in Section 53, second paragraph,
(4) patent infringements,
(6) the adjudication of compensation under Section 76.
66. In cases referred to in Section 65, the City Court is competent to act with four members, of whom two shall be proficient in law and two have technological qualifications. More than three members proficient in law and three members with technological qualifications may not sit on the Court. One of the members proficient in law shall be the President of the Court.
In deciding cases without a main session, as well as in proceedings which do not take place at a main session or at inspections on site, the City Court is, however, competent with one member proficient in law. In such cases no more than one member proficient in law and one technologically qualified member may sit on the Court. In this case the member proficient in law is the President of the Court.
67. In cases, in the decisions of which a technologically qualified member of the City Court has taken part, the Court of Appeal shall be competent with three members proficient in law and two technologically qualified members. If three members proficient in law have participated in the decision of the City Court, however, at least four members proficient in law shall participate in the decision of the Court of Appeal. More than five members proficient in law and three technologically qualified members may not sit on the Court.
If the Court of Appeal finds that the participation of technologically qualified members is evidently unnecessary, then the Court of Appeal is competent without such members.
68. The Government or an authority appointed by the Government shall appoint at least 25 persons for three years at a time to serve as technologically qualified members of the City Court and the Court of Appeal. During a three year period the Government may, where necessary, appoint additional persons for such service for the remainder of the period.
The President of the Court shall select, for each particular case, the members to sit on the Court from among the persons thus appointed, according to the desired technological qualifications and other requirements. A technologically qualified member who retires from office shall be obliged to serve for the remainder of a case in which he participated earlier.
69. In cases under Section 65, the Court shall obtain a statement of opinion from the Court of Patent Appeals if this is deemed necessary.
70. A transcript of the judgment or final decision in cases referred to in Section 65 shall be sent to the Patent Authority.
Chapter X: Special Provisions
71. A proprietor of a patent who is not domiciled in this country shall have an agent residing here who is entitled to receive for him service of writs of summons, notifications and other documents in legal cases and matters concerning the patent, with the exception of writs or summons in criminal cases and orders for the party to appear personally before the Court. The agent shall be communicated to the Register of Patents and shall be recorded therein.
If the proprietor of a patent has not reported an agent as set out in the first paragraph, the service may instead be effected by sending the document to be served on him by mail in a prepaid letter to his address appearing on the Register of Patents. If there is no complete address entered in the Register, the service may be effected by making the document available at the Patent Authority and by announcing said service and the essential contents of the document in such publication as is determined by the Government. The service shall be considered to have been effected when the steps mentioned above have been taken.
On condition of reciprocity the Government may decree that the provisions of the first and second paragraphs shall not apply in respect of a proprietor of a patent who is domiciled in a specified foreign country or who has an agent residing in that country provided the agent is recorded in the Register of Patents of this country and is empowered in the manner prescribed in the first paragraph.
72. If a patent applicant or a proprietor of a patent, despite having observed all due care required by the circumstances, in a case other than that referred to in the second paragraph, has suffered loss of rights because he omitted to perform an act at the Patent Authority within a time limit prescribed in this Act or under the regulations of this Act, and if he completes the act within two months from the removal of the cause of noncompliance with the time limit, but at the latest within one year following the expiry of the time limit, the Patent Authority shall declare that the act shall be deemed to have been completed within the proper time limit. If the applicant or the patent proprietor desires to obtain such a declaration, he shall, within the time limit stated above for the act, make a written petition to that effect to the Patent Authority and pay a prescribed fee.
If an applicant or the proprietor of a patent has not paid the annual fee within the time limit prescribed in Section 41, third paragraph, or Section 42, third paragraph, the provisions in the first paragraph shall apply with the exception that the annual fee must be paid and the petition made no later than six months following the expiry of said time limit.
The first paragraph does not apply to the time limit referred to in Section 6, first paragraph.
As regards an international patent application which has been pursued in Sweden in accordance with Section 31, the first paragraph shall also apply if the patent applicant has suffered loss of rights because he has not observed a time limit with regard to the receiving Office, the International Searching Authority, the International Preliminary Examining Authority or the International Bureau. The act which has not been performed within the time limit shall in those cases referred to here be performed at the Patent Authority. The provisions of this paragraph do not apply to the time limit within which an international patent application must be filed to enjoy priority from an earlier application.
73. If, in cases referred to in Section 31 or 38, a document or fee which has been sent by mail has not arrived at the Patent Authority within the prescribed time limit, but if the act intended by the mailing is completed within two months from when the applicant realized or should have realized that the time limit had been exceeded, but in no case later than one year after the expiration of the time limit, the Patent Authority shall declare that the act shall be considered as having been completed within the proper time limit, provided
(1) interruption of the postal service occurred on any of the ten days preceding the expiration of the time limit on account of war, revolution, civil disorder, strike, natural catastrophe, or other like reason in the locality where the sender is staying or has his place of business, and the document or fee was mailed to the Patent Authority within five days from the resumption of postal service, or
(2) the document or fee was mailed to the Patent Authority by registered mail no later than five days before the expiration of the time limit, but only if the mailing was sent by airmail where this was possible or the sender had reason to assume that the mailing by surface mail should have arrived at the Patent Authority within two days of mailing.
If the applicant wishes to obtain such declaration pursuant to the first paragraph, he shall make a petition in writing to that effect with the Patent Authority within the time limit prescribed in the first paragraph for the act.
74. If a petition according to Section 72 or 73 has been granted and as a result thereof processing of a patent application which has been dismissed or rejected after becoming available pursuant to Section 22 is resumed or a patent which has lapsed is considered maintained, an announcement to that effect shall be made.
If anyone, after the expiration of the time limit for restoration of the dismissed application or after the rejection decision has become final or the patent has lapsed but before said announcement has been made, has begun in good faith to use the invention commercially in this country, he may, notwithstanding the patent, continue such use, retaining its general character. Such right to use shall also be granted on corresponding conditions to anyone who has made substantial preparations for commercial use of the invention in this country.
The right according to the preceding paragraph can only be transferred to others together with the business in which it originated or in which the use was intended to take place.
75. Final decisions of the Patent Authority, other than those to referred to in Section 26, and decisions under Sections 42, 72 or 73, may be appealed against to the Court of Patent Appeals within two months from the date of the decision.
A final decision of the Court of Patent Appeals may be appealed against to the Supreme Administrative Court within two months from the date of the decision. In this case, the rules in Sections 35-37 of the Code of Administrative Procedure (1971:291) concerning appeals against decisions by the Administrative Court of Appeal shall apply. Decisions by the Court of Patent Appeals shall state that special leave is required for consideration by the Supreme Administrative Court and the grounds on which such leave is granted.
76. Fees under this Act shall be fixed by the Government. The Government may decree with respect to annual fees that one or more of the first fee years shall be exempt from fees.
77. More detailed regulations concerning patent applications, announcements regarding patent matters, printing of the application documents, the Register of Patents and the keeping thereof as well as the Patent Authority shall be issued by the Government, or to the extent laid down by the Government, by the Patent Authority. Chronological records kept by the Patent Authority shall be available to the public to the extent laid down by the Government.
The Government may decree that documents in matters regarding an application for a patent may be delivered to an authority in another country.
The Government may also decree that the examination of patent applications, on request by the Patent Authority, may be carried out at an authority in another country or at an international institution, and that a party who applies for a patent for an invention for which he applied for a patent in another country shall be obliged to report what the patent authority in the other country communicated to him with respect to the examination of the patentability of the invention. Such obligation to report shall not be decreed, however, in respect of an application referred to in Chapter III, if it has been the subject of an international preliminary examination and the report concerning said examination has been filed with the Patent Authority.
78. If the country is at war or in danger of war, the Government, when called for in the public interest, may decree that the right to a specific invention shall be surrendered to the State or to another party designated by the Government. A reasonable compensation shall be paid for the right to the invention thus surrendered. If no agreement on the compensation can be made with the party entitled to compensation, the court shall fix the compensation.
If a party other than the State has availed itself of the right to an invention pursuant to the first paragraph, and if the said party does not fulfill its obligations with regard to compensation, the State shall be obliged to pay the said compensation as soon as this is requested by the party entitled to compensation.
79. Special regulations apply to inventions of importance for the defense of the country.
Chapter XI: European Patents
80. A European patent is a patent which has been granted by the European Patent Office under the European Patent Convention done at Munich on October 5, 1973. A European patent application is a patent application filed under said Convention.
An application for a European patent shall be filed with the European Patent Office. Such application may also be filed at the Patent Authority to be transmitted by the Patent Authority to the European Patent Office. However, applications referred to in Article 76 of said Convention (European divisional applications) shall always be filed at the European Patent Office.
The provisions of Sections 81 to 93 apply to European patents for Sweden and European patent applications designating Sweden.
81. A European patent is granted when the European Patent Office has announced its decision to allow the patent application. The European patent has the same legal effect as a patent granted in this country and is also otherwise subject to the same conditions as such patent, unless otherwise provided in this Chapter.
82. A European patent has effect in this country only if the applicant has supplied, within the period determined by the Government, to the Patent Authority a translation into Swedish of the text in which the patent is intended to be granted according to the notification to the applicant from the European Patent Office, and within the same period has paid the prescribed fee for printing the translation. If the European Patent Office rules that a European patent shall be maintained with amended wording this shall also apply with respect to the amended text.
The translation shall be available to anyone. If the European patent application has not been published by the European Patent Office when the translation is received, however, the translation shall not be made available before such publication has taken place.
If a translation has been supplied and the fee paid within the prescribed period and if the European Patent Office has announced its decision to allow the patent application or has decided that the European patent shall be maintained with amended wording, the Patent Authority shall issue an announcement to that effect. As soon as possible, printed copies of the translation shall be obtainable from the Patent Authority.
83. If the proprietor of a patent has not completed the act referred to in Section 82, first paragraph, within the prescribed time limit, the provisions of Section 72, first paragraph, concerning patent applicants shall be correspondingly applicable. If it is declared under Section 72 that such act shall be deemed to have been completed within the proper time limit, the Patent Authority shall make an announcement to that effect.
If anyone, after the time limit for completing the acts according to Section 82, first paragraph, has expired but before the above announcement has been made, has begun in good faith to use the invention commercially in this country or has made substantial preparations therefor, he shall enjoy the right provided in Section 74, second and third paragraphs.
84. (Deleted)
85. If the European Patent Office has revoked a European patent in its entirety or in part, this revocation shall have effect as if the patent in this country were declared invalid to the corresponding extent. The Patent Authority shall announce the revocation.
86. Annual fees for European patents shall be paid to the Patent Authority for each fee year beginning after the year in which the European Patent Office announced its decision to allow the patent application.
If an annual fee for a European patent is not paid according to the stipulations in the first paragraph and in Sections 41 and 42, Section 51 shall be correspondingly applicable. The first annual fee for a European patent is not, however, due for payment, before two months have passed from the date on which the patent was granted.
87. A European patent application which has been accorded a filing date by the European Patent Office shall have the same effect in this country as a Swedish patent application filed on said date. If the application under the European Patent Convention enjoys priority from an earlier date than the filing date, such priority shall be taken into consideration.
In applying Section 2, second paragraph, second sentence, the publication of a European patent application pursuant to Article 93 of the European Patent Convention shall be equivalent to the application becoming available to the public pursuant to Section 22. This shall also apply to publication referred to in Article 158(1) of the Convention if said publication is ruled by the European Patent Office to be equivalent to publication pursuant to Article 93.
88. If a European patent application has been published under the European Patent Convention and a translation into Swedish of the patent claims as worded when published has been filed with the Patent Authority, the Patent Authority shall make an announcement to this effect and make the translation available to anyone.
If anyone uses an invention commercially for which patent protection is sought by a European patent application after the announcement pursuant to the first paragraph has been made, the provisions concerning patent infringement shall apply correspondingly if the application results in a patent for Sweden. In such case, however, the patent protection shall only extend to that revealed in both the patent claims as worded when published and the claims according to the patent. Punishment shall not be imposed and damages may only be determined pursuant to Section 58, second paragraph.
The provisions of Section 58, third paragraph, shall not apply if the action for compensation is brought within one year after the period for opposition against the European patent has expired or, if opposition has been filed, within one year after the decision by the European Patent Office to maintain the patent.
89. If a European patent application or request that such application shall designate Sweden has been withdrawn or if under the European Patent Convention such withdrawal shall be considered to have been made, and if processing of the application has not been resumed pursuant to Article 121 of the Convention, this shall have the same effect as withdrawal of a patent application with the Patent Authority.
If a European patent application has been rejected, this shall have the same effect as a rejection of a patent application in this country.
90. If the translation of a document referred to in Section 82 or 88 does not agree with the wording of the document in the language of the proceedings before the European Patent Office, the patent protection shall only extend to that which is evident from both texts.
In revocation litigation the text in the language of the proceedings shall be the sole authentic text.
91. If the applicant or the proprietor of a patent files with the Patent Authority a correction of the translation referred to in Section 82 and pays the prescribed fee for printing the corrected translation, the corrected translation shall apply in place of the earlier translation. A corrected translation shall be made available to anyone if the original translation was available. If the correction has been filed and the fee paid, and if the original translation is available to anyone, the authority shall also announce said correction. As soon as possible, printed copies of the corrected translation shall be obtainable from the Patent Authority.
If the applicant files a correction of the translation referred to in Section 88 and pays the prescribed fee, the Patent Authority shall make an announcement to this effect and make the corrected translation available to anyone. After the announcement has been made, the corrected translation shall apply in place of the earlier translation.
If anyone, before the corrected translation became valid, has, in good faith, begun to use the invention commercially in this country in a manner which according to the earlier translation did not constitute infringement of the right of the applicant or proprietor of the patent, or has made substantial preparations therefor, he shall enjoy the right specified in Section 74, second and third paragraphs.
92. If the European Patent Office has decided to revoke a European patent partially or in its entirety, or if the circumstances have occurred as referred to in Section 89 regarding a European patent application, and if the European Patent Office declares, nevertheless, under the European Patent Convention that the proprietor of the patent or the applicant shall be granted restitutio in integrum, this shall also apply in this country.
If anyone, after the decision was rendered or the circumstances occurred but prior to the announcement by the European Patent Office of the declaration referred to in the first paragraph, began in good faith to use the invention commercially in this country or made substantial preparations therefor, he shall enjoy the right specified in Section 74, second and third paragraphs.
93. If a European patent application which has been filed with a national patent authority is deemed to be withdrawn because the European Patent Office did not receive it within the prescribed time limit, at the request of the applicant, the Patent Authority shall take up the application as converted to an application for a Swedish patent provided
(1) that the request is filed with the national authority which received the patent application within three months from when the applicant was notified that the application was deemed withdrawn and, furthermore, is received by the Patent Authority within twenty months from the date of filing of the application or, if priority is claimed, the day from which priority is claimed, and
(2) the applicant pays, within the period determined by the Government, the prescribed application fee and files a translation into Swedish of the patent application.
If the patent application fulfills the requirements regarding the form of the application stipulated in the European Patent Convention and its Implementing Regulations, it shall be accepted in this respect.
Chapter XII: Pledging
94. Patents which have been granted or which have effect in this country can be pledged pursuant to the stipulations in this Chapter.
Pledges can also apply to:
1. a Swedish patent application,
2. an international patent application which has been pursued under Section 31 or which has been taken up for processing in accordance with Section 33, third paragraph or Section 38, or
3. a European patent application for which a translation in accordance with Section 88 has been received by the Patent Authority or which has been converted under Section 93.
A pledge of a patent application also encompasses a portion of the application which becomes the subject of division or breaking out.
95. A pledge of a patent or patent application arises by registration of a written contract pledging the property. The application for registration is made with the Patent Authority.
If a registered pledge has been transferred to another, this shall be recorded upon request in the Register of Patents or the Register of Patent Applications.
If a pledge has been given to two or more individually, priority is given that pledge for which an application for registration was received first by the Patent Authority, unless otherwise agreed.
If more than one application for registration of pledging contracts is made on the same day, precedence shall be given between them in accordance with the chronological order in which they were made, unless otherwise agreed. If the contracts were simultaneous or it cannot be determined in what chronological order they were made, then they have the same right.
96. An application for registration in accordance with Section 95 is made by one having the right to the patent or patent application or by one to whom a pledge has been given. The applicant shall confirm the pledgor's right to the patent or patent application.
The patent proprietor as recorded in the Register of Patents shall be considered to have the right to the patent unless the case reveals otherwise. If the application for registration relates to a pledge of a patent application, the inventor or his assignee as registered with the Patent Authority shall be considered to have the right to the patent application, unless the case shows otherwise.
If, when the application for registration is made, the pledgor does not have the pledged property at his disposal due to distraint, bankruptcy, legal incapacity, securing of payment, sequestration or for some other reason, the application cannot be granted.
97. A contract in which a patent is pledged can be registered when the patent has been granted or, if the contract relates to a European patent, when it has come into effect in this country pursuant to Section 82.
A contract in which a patent application is pledged can be registered when the patent application has been registered in the Register of Patent Applications at the Patent Authority or, if the contract relates to a European patent application, when an announcement under Section 88 has been made.
If a pledged patent application results in the granting of a patent, the patent will thereafter be the pledged property.
98. Even though registration has been effected, the right to the pledged property only applies if the contract was entered into by a proper owner of the property, entitled to dispose thereof, and if the contract is not invalid for some other reason.
99. The pledge has lapsed if the patent or patent application has been transferred to another party or is otherwise no longer valid due to the provisions of this law.
100. The registration shall be stricken if the pledge, through a final judgement, has been declared void or if the pledge has lapsed or otherwise ceased to be valid.
101. The pledging of a patent or patent application is in effect from the date of application for registration under Section 95 against anyone subsequently acquiring ownership of or other right to the property.
A licensing agreement is valid against the pledgee if the agreement was concluded prior to the application for registration of the pledge contract.
102. The provisions of another law concerning pledges upon distraint or bankruptcy also apply to pledges of patents or patent applications. The receipt by the Patent Authority of an application for registration under Section 95 has the same legal effects as when a pledgee takes a chose in possession.
If a pledged patent or patent application is sold upon distraint or bankruptcy, such licensing agreements as are referred to in Section 101, second paragraph, shall remain in force.
103. The pledgee may sell the pledge and take his claim from the proceeds only if he has previously informed the debtor and other known parties, of the sale and they have been afforded sufficient opportunity to look after their interests.
After sale pursuant to this section, such licensing agreements as are referred to in Section 101, second paragraph, shall remain in force.
104. Anyone applying for registration under this chapter shall pay a fee. The Government shall determine the size of the fee.
Chapter XIII: Supplementary Protection for Medicinal Products
105. According to the provisions of this chapter, supplementary protection for an active ingredient or a combination of active ingredients in a medicinal product may be applied for and granted.
106. Supplementary protection shall be granted where
1. the active ingredient or the combination of active ingredients is protected by a patent which is in force in Sweden,
2. the active ingredient or the combination of active ingredients is included in a medicinal product which is authorized for sale in accordance with Section 5 of the Medicinal Products Act (1992:859),
3. the authorization is the first which incorporates the active ingredient or the combination of active ingredients, and
4. supplementary protection has not previously been granted for the active ingredient or the combination of active ingredients.
107. A petition for supplementary protection shall be made in writing to the Patent Office.
The petition shall be lodged within six months of the date on which the medicinal product is authorized. If authorization was granted before the patent was granted, the petition shall be lodged within six months of the date on which the patent was granted.
The petition shall contain a statement of the number of the patent and the title of the invention. The petition shall also contain an identification of the active ingredient or the combination of active ingredients and substantiation of the decision of the first authorization of the medicinal product.
The petitioner shall pay a fixed petition fee.
The petition shall be announced by the Patent Office.
108. Where the conditions for supplementary protection according to Sections 106 and 107 are fulfilled, the Patent Office shall approve the petition. The decision shall be published.
When the decision to approve the petition has been officially announced, supplementary protection has been granted. Granted supplementary protection shall be recorded in the Patent Register.
109. The supplementary protection shall take effect at the end of the lawful term of the patent.
The supplementary protection can be maintained for a period equal to the period which elapsed between the date on which the application for a patent was filed and the date of the first authorization of the medicinal product, reduced by a period of five years. The duration of the supplementary protection may not, however, exceed five years.
110. Within the limits of protection conferred by the patent, the supplementary protection extends to the active ingredient or combination of active ingredients which is included in the authorized medicinal product and for any use of the active ingredient or the combination of active ingredients in the medicinal product that has been authorized before the expiry of the protection period.
The supplementary protection determined in accordance with the first paragraph shall confer the same legal effects as the patent had.
111. Annual fees are due for the supplementary protection. The fee year is calculated from the day on which the supplementary protection came into effect and thereafter from corresponding days.
112. Where an annual fee is not paid in accordance with that prescribed, the supplementary protection shall lapse with effect from the day of commencement of the fee year for which the fee has not been paid.
The supplementary protection shall also lapse if the authorization of the medicinal product ceases to be valid.
113. The supplementary protection shall be invalid if
1. the supplementary protection was granted contrary to the provisions of Section 106,
2. the patent has lapsed before its lawful term according to Section 40, first paragraph, has expired, or
3. the patent is declared invalid to the extent that the active ingredient or the combination of active ingredients for which supplementary protection was granted is no longer protected by the claims of the patent or, after the patent has expired, grounds exist which would have justified such a declaration.
114. In the absence of provisions in this chapter, the provisions applicable under Chapters II, V-X and XII shall apply to a petition for supplementary protection and to granted supplementary protection. Opposition may not, however, be filed against a granted supplementary protection.
A decision relating to supplementary protection may be appealed against in accordance to the corresponding provisions for appeals relating to patents.
Provisions of Entry into Force and Transition
(for the Amendments (1978) to the Swedish Patents Act of 1967)
1. This Act shall enter into force on the day determined by the Government (1 June 1978).
2. Patent applications which have been allowed for laying open to public inspection before the entry into force, and applications for patents of addition filed prior to the entry into force, shall be processed and decided on according to the older text of the Act.
3. As regards other applications filed before the entry into force than those mentioned under point 2, the following shall apply.
The old text of Section 9 shall be applied instead of the new text of Section 8.
If the invention relates to foodstuffs or medicines, a patent may not be granted on the product itself.
4. The new provisions shall also apply to patents which have been granted before the entry into force or which are granted on applications filed before the entry into force unless otherwise stipulated in the following.
The term of patents granted on applications filed more than twelve years before the entry into force, shall be determined according to the old text of Section 40.
If, before the entry into force, a patent has lapsed pursuant to Section 51, first paragraph, then Section 51, second and third paragraphs and Section 55, second sentence, shall still apply.
For patents granted on applications filed before the entry into force, the old text of Section 60 shall still apply.
Old provisions concerning patents of addition shall still apply in respect of patents of addition granted before the entry into force or which will be granted according to point 2.
Matters of revoking a patent which has been granted or is granted according to the old text of the Act, shall be decided according to that text of the Act.
5. If a European patent application designating Sweden is deemed to be withdrawn pursuant to Article 162(4) in the European Patent Convention, the Patent Authority shall, at the request of the applicant, take up the application as converted to an application for a Swedish patent provided, firstly, that the request is filed with the European Patent Office within three months after the applicant was notified that the patent application was deemed to be withdrawn, and, secondly, that the applicant, within the time limit determined by the Government, pays the prescribed application fee and files a translation into Swedish of the original text of the application and of the amendments made during processing at the European Patent Office and which the applicant wishes to cite. Regarding the form of the patent application, Section 93, second paragraph, shall apply mutatis mutandis.
6. If a patent application for which conversion has been requested according to point 5 has been published pursuant to Article 93 in the European Patent Convention and if it is declared under Section 72 that a translation or fee which was received too late shall be considered to have been received within the proper time limit, the Patent Authority shall make an announcement to this effect. The same shall also apply to patent applications for which conversion is requested which have been published under Article 21 of the Patent Cooperation Treaty, if this publication is deemed by the European Patent Office to be equivalent to publication under Article 93.
If anyone, after the expiration of the time limit for filing the translation or paying the fee, but before the above announcement was made, has begun in good faith to use the invention commercially in this country or has made substantial preparations therefor, he shall enjoy the right provided in Section 74, second and third paragraphs.
Provisions of Entry into Force and Transition
(for amendments (1983) to the Swedish Patents Act of 1967)
1. This Act shall enter into force on the day determined by the Government (1 October 1983).
2. The provisions concerning deposits of cultures of microorganisms in the new texts of Sections 8, 22 and 56 and in Section 8a shall not be applied to patent applications filed prior to entry into force. For such applications, the provisions in the old texts of Sections 8, 22 and 56 shall be applied instead.
3. A deposit which has been made under older provisions may be replaced with a new deposit of a culture of the same organism in the manner prescribed by the Government (replacement deposit). If the replacement deposit has been made in the prescribed manner, it shall be considered as having been made on the date when the older deposit was made. With regard to replacement deposits, Section 8a, second paragraph, and the new texts of Sections 22 and 56 shall apply as though the replacement deposit had been a deposit under Section 8a. Section 22, seventh paragraph, shall not, however, apply to such a deposit.
4. The question of declaring a patent to be invalid which has been granted or is granted according to the old text of the Act shall be decided according to that text of the Act. The provision under point 3 concerning replacement deposits shall be observed in this case.
5. If the applicant at entry into force has completed that which is required to pursue an international patent application according to the new text of Section 31 and if the period for the pursuit had then not yet expired, the application shall be considered pursued on the date of entry into force.
6. The provisions concerning annual fees for patent applications do not apply to applications filed prior to entry into force. For patents which have been granted or are granted on the basis of such applications, the old provisions concerning annual fees for patents shall apply instead of the new provisions concerning annual fees.
Even if the old provisions concerning annual fees shall apply, annual fees, which become due on the first day of a patent year according to the old provisions, shall instead become due on the last day of the calendar month during which the patent year begins.
As regards patent applications filed prior to entry into such a request as is referred to in Section 14, notwithstanding the new text of said section, may be made until two years have passed from entry into force.
Amended wordings of Sections 31 and 72 (No. 937 of 1984) entered into force on 1 January 1985
Provisions of Entry into Force and Transition
(for amendments (No. 233 of 1986) to the Swedish Patents Act of 1967)
1. This Act enters into force on 1 July 1986.
2. As regards the constitution of the City Court, the older provisions shall still apply at main proceedings begun prior to entry into force and at deliberations and votings in connection with such main proceedings.
3. As regards the constitution of the Court of Appeal, the older provisions shall still apply in cases where the final proceedings have begun prior to entry into force.
4. As regards appeals against decisions rendered by the Court of Patent Appeals prior to entry into force, the older provisions shall still apply.
The amendments to Section 64 and the new Chapter XII (No. 1330 of 1987) entered into force on 1 April 1988.
Amended wordings of Sections 57 and 62 (No. 296 of 1991) entered into force on 1 January 1992
Provisions of Entry into Force and Transition
(for the amendments (No. 1688 of 1992) to Section 3 of the Patents Act)
1. This law shall enter into force on the date determined by the Government.
2. Until the date specified by the Government, when applying the new provision of Section 3, paragraph 2), the fact that food or medicine was put on the market in Finland or that medicine was put on the market in Iceland shall not be considered to mean that the product in question was put on the market within the European Economic Area. This applies however only to products which enjoy patent protection in Sweden on another basis than that they are products manufactured in accordance with a process protected by a patent.
Provisions of Entry into Force and Transition for Amendments to Sections 72
and 75 and Chapter XIII, Supplementary Protection for Medicinal Products
(No. 1406 of 1993)
1. This law enters into force on 1 January 1994.
2. If an application for a patent has been allowed for laying open to public inspection prior to the entry into force, the previous provisions shall apply with the exception of that stipulated in point 3.
3. The provision in Section 72 shall apply also to a patent which has been granted and to an application processed according to the previous provisions.
4.Where a petition for supplementary protection relates to ingredients in a medicinal product which was authorized after 1 January 1985 though before entry into force of this Act, a petition may be lodged by no later than 30 June 1994, contrary to that which is stated in Section 107, second paragraph, first sentence.
5.Where a petition for supplementary protection relates to ingredients which were protected by a patent on 1 January 1993, though the lawful term of the patent expired before the entry into force of this Act, a petition may be lodged by no later than 30 June 1994, contrary to that which is stated in Section 106, point 1.
Supplementary protection which has been granted according to the first paragraph begins to take effect when it is granted.
After expiry of the lawful term of the patent, though before the petition for supplementary protection according to the first paragraph has been lodged, any person who in good faith began to commercially exploit the invention in this country may continue the exploitation within its initial scope without impediment from the supplementary protection. Under corresponding conditions, he who taken substantial steps to commercially exploit the invention within this country enjoys such right to exploitation.
The right according to the third paragraph may be transferred to another only in connection with the business in which it arose or the exploitation was intended to be made.