sWEDEn
IPRED was implemented by, amongst others, a new rule (Rule 57 b, well in advance of the end of the patent’s validity period or the generic drug
paragraph 3) under the Swedish Patent Act, which allows courts to grant a supplier has previously attacked the validity of the IP rights.
preliminary injunction in the case of attempts to infringe, or preparations
for infringing, IP rights. Previously in Sweden, it was only possible to get
Patents
a preliminary injunction aft er infringement had already begun. Th is was
Th e Svea Court of Appeals has decided that infringement occurred in two
obviously a disadvantage for the rights holder as it meant that some damage
cases where the accused object did not fall within the literal scope of the
had already been done before it was possible to take an action.
claims, thus confi rming that infringement can occur by way of equivalence.
Th is was particularly noticeable in Sweden’s pharmaceutical industry, where
Nacka District Court has ruled on whether it is possible for a party to
pharmacists in the government-run medical benefi ts system are required to
be taken to court in Sweden for the payment of court costs that were
dispense the cheapest version of a drug. Since the middle of 2009, the prices
awarded against it in a patent trial in the United States. Th e court decided
of drugs have been determined by negotiation between the supplier of the
that in the event that the party itself raised the suit in the US, it could be
drug and the Dental and Pharmaceutical Benefi ts Agency—before then
pursued in Sweden; however, if the party had been sued and had merely
they were agreed on by negotiation with the Pharmaceutical Benefi ts Board
defended itself, it could not be pursued in Sweden. Th is decision has
(PBB). Usually, where available, the cheapest version of a drug would be the
been appealed.
generic version as this would have had much lower development costs than
the original drug. As it was possible for a generic drug to get sales approval
Stockholm District Court has decided whether the amount of damages
in Sweden without any authority being required to determine if the generic
to be awarded in a patent infringement case relating to a two-component
drug infringed any IP rights, it was possible for the generic drug to reach
adhesive should be based on the value of sales of the patented hardener or
the market while the patent for the original drug was still valid. It was only
of the complete adhesive. Th e court reasoned that the hardener and the
at this point that the patent holder could take action against the generic
glue were only intended to be used together as a system, as shown by the
drug supplier.
fact that the suppliers had only delivered the patented hardener for use with
their own glue systems and, furthermore, that it was inconceivable that a
At the end of December 2008, the Supreme Court in Sweden decided
two-component glue user would buy glue from one manufacturer and
on a patent case for the fi rst time since 2002. Th e case concerned alleged
hardener from another. Th e court decided that damages should be based
supplementary protection certifi cate (SPC) infringement by a generic
on the total sales of both components, because the total damage that the
drug company that had begun preparations to enter the Swedish market
patentee had suff ered was the loss of glue and hardener sales. Th is decision
by negotiating a price with the PBB. Th e court decided that the company
has been appealed.
negotiating with the board was not intending to sell the generic drug to
the board during the life of the SPC but was only agreeing on a price that
would be used for sales aft er expiry of the patent. Th e conclusion was that
Copyright
proceedings before the PBB in this case could not be considered to be an Th e Supreme Court decided that the Mini Maglite torch is copyright-
off er for sale (which is one way of infringing a patent) and thus the generic protected and a similar torch sold by Ikea infringed this copyright. Th e
company did not infringe the SPC. Th is decision took place before IPRED court was of the opinion that, taken in its entirety, the torch had its own
and gives patent holders the weapon of preliminary injunctions to use identity and that it is a suffi ciently original, independent and individual
when preparations to infringe are taking place. A question that needs to be product that it should not only be given protection against direct copying
determined is whether the administrative actions required before selling a but also limited protection against copying in modifi ed form. Ikea had
generic drug in Sweden can be considered to be preparations to infringe the claimed that the torch was just a scaled-down copy of an earlier torch. Th e
IP rights. According to current practice in other Nordic countries, simply court referred to an opinion from the Opinion Board—a privately owned
applying for sales approval for a drug while the IP rights are still in force part of the Swedish Design Association oft en used to give opinions on the
is, in itself, insuffi cient grounds for a preliminary injunction to be granted. artistic merit of designs—which stated that the Mini Maglite showed proof
However, such an application together with other circumstances could of a consistent and well-chosen application of design. It is worth noting
mean that there is a real risk of IP rights infringement. Examples of such that it is very common for the Swedish courts to follow the opinions of the
other circumstances are that the request for approval has been submitted Opinion Board.
www.worldipreview.com World Intellectual Property Review Digest 2009 147
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