Peter STRÖMBERG

President, Court of Patent Appeals

Recent developments in European and national patent law and case law

Overview of a proposed change of jurisdiction in litigation and appeals in the field of IP law and neighbouring areas in Sweden

Today Swedish jurisdiction in IP matters concerning the rights that are subject to public registration, i.e. patents, trade marks and design is divided between the General Courts of Law and the Administrative Special Court, named the Court of Patent Appeals.

The General Courts of Law have jurisdiction on matters concerning litigation over granted rights, e.g. infringement and revocation (or nullity) of the granted right. The Court of Patent Appeals has jurisdiction in the process leading to grant and opposition in immediate connection with grant.

In the administrative process of granting a patent the decisions of the Swedish Patent Office may be appealed to the Court of Patent Appeals, which is an administrative court with specialised jurisdiction. To describe it simply the Court of Patent Appeals has the same jurisdiction as the EPO boards of appeal. It also has jurisdiction on appeals from the office regarding trademarks and designs, and a couple of other types of cases.

In the specific field of patent litigation the General Courts' jurisdiction is centralised to one court, i.e. the District Court of Stockholm, whose judgments and other decisions can be appealed against to Svea Court of Appeal. Appeals against Svea Court of Appeal decisions can be made to the Supreme
Court. Appeals both to the second and third instance require leave to appeal.

A legislative draft is now being prepared by the government, which hopefully will submit it to parliament early next year. The content, based on the hearings procedure, will most likely be the following.

All IP, market law and competition law cases of both a judicial and administrative nature will be handled by the District Court of Stockholm, acting as a specialised Court, with the possibility of appeal to Svea Court of Appeal. It will be called the Patents and Market Court and will have exclusive jurisdiction in this field.

Impact of this reform on patent cases

In both the administrative procedure carried out by the Court of Patent Appeals and the civil litigation procedure in the District Court of Stockholm, the panel of judges normally includes two technical judges. In the Court of Patent Appeals these are full-time permanent judges, appointed by the government, just like all Swedish judges. Our technical judges are today also being lent on a case-by-case basis to the District Court of Stockholm and Svea Court of Appeal to take part in the panels.

The proposal is essentially to merge these courts together. The Court of Patent Appeals will cease to exist and the judges, at present ten of which six are technical judges, will be transferred to the Patents and Market Court and the Svea Court of Aappeal respectively. Probably four of the technical judges will join the first instance and two will go to the second instance.

The proposal will have no substantial effect on the procedure in litigation cases, as they will be carried out in accordance with the same rules as before. In the administrative procedure, there will be changes. The national patent office's decisions will be appealable to the District Court of Stockholm in its capacity as the national Patents and Market Court. In general the same or quite similar procedural rules will apply as before, when handled by the Court of Patent Appeals. Appeals in the next stage will be tried by Svea Court of Appeal, composed of both legally trained and technical judges. This is a substantial difference as the Supreme Administrative Court today reviews the Court of Patent Appeals' judgments on appeal, without any technical judges on the panel.

The new Patents and Market Court will have exclusive jurisdiction not only in patent cases but also in all other IP fields, such as trademarks, design and copyright. It will also have exclusive jurisdiction in market law cases and competition cases.