A welcome change: Sweden’s new patent act

The Scandinavian country has updated its Act to make it more accessible and in line with European practice at a time when its companies and universities are filing more patents than ever, says Maria Zamkova of Fenix Legal.

On January 1, 2025, a long-awaited new and modernised Swedish Patent Act came into force, thereby replacing the previous Patent Act from 1967.

This is perfect timing, as more patent applications than ever originate from Sweden. For example, the European Patent Office (EPO) annual Patent Index of 2023, which provides a comprehensive overview of current patent trends across Europe, ranks the Swedish company Ericsson as fifth among applicants.

Although Sweden is ranked tenth in the number of European patent applications filed per country, based on the first-listed applicant’s country of residence, the Swedish universities are more active.

In October 2024, the EPO published a study, “Patenting by European universities on the rise”, where for example, the Swedish Lund University was placed in third place (with 92 startups). In 2024, the Swedish Intellectual Property Office (Patent och registreringsverket (PRV)) received 2,149 national patent applications, of which 1,846 of the applicants were Swedish companies.

Act updates

The new Swedish Patent Act (2024:945) also aligns the Swedish legislation with the European Patent Convention (EPC) and the Agreement on a Unified Patent Court (UPCA).

It is mainly based on the directive from the Swedish government from 2012, “A uniform patent protection in the EU and a new patent law” (Dir. 2012:99).

Many of the changes are to make the Act more accessible by introducing clear subject headings, updating the 1960s language, and adding separate paragraph numbers for each chapter.

Application fee: PRV’s formal processing of a patent application will now only commence once the application fee has been paid (Chapter 4, Section 15 of the Patent Act).

The possibilities of practicing so-called patent prophylaxis by using PRV as a free public notice board have thus disappeared.

Drawings: No longer considered part of the description, but a separate, independent part of the application.

Power of attorney requirement: There is no explicit requirement for filing power of attorney documents in application and opposition cases, which has so far been mandated by the Patent Regulation (1967:838).

It is, of course, still a requirement to present a power of attorney if the patent office is informed of a change of representative without having an official notification that the previous representative’s power has terminated.

‘Prior art’: The definition is modernised. The 1967 version of the Patent Act stated that “a patent shall only be granted for an invention that is new in relation to what has become known before the date of the patent application and also differs substantially from it.”

This is now split into three Sections, with more clear identification: “Prior art means everything that has become publicly available before the date of filing the patent application, regardless of whether this has occurred through writing, lecture, utilisation or in any other way” (Chapter 2, Section 12, PL);

“An invention is new if it does not belong to prior art” (Chapter 2, Section 9, PL); and “An invention has an inventive step if, taking into account prior art, it is not readily available to a person skilled in the art” (Chapter 2, Section 11, PL).

Patent claims (Chapter 4, Section 4 of the Patent Act): The patent claims shall define the invention that the applicant wishes to protect through technical and other features. The patent claims shall be clear, concise and supported by the description.

The concept of “specific information” is deleted. Instead, the concepts of “clear”, “concise” and “support in the description” are added.

Two new exceptions to the exclusive right are introduced:

1. an exception for utilising biological material to cultivate, discover and develop new plant varieties; and
2. an exception for certain uses of computer programs (eg, to make necessary changes in a program in order for it to run as intended), which is coordinated with the Swedish Copyright Act.

Examples of other changes

The new Patent Act introduces the possibility of having more than one independent invention searched and examined within the framework of a single patent application.

The requirement for clarity in an application’s description has been adjusted to apply to the entire application.

Moreover, the requirement concerning the degree of awareness necessary for certain uses to be considered an infringement has been amended, requiring that the person utilising the patent have known, or reasonably should have known, that a particular use was not permitted, compared to the 1967 Act: “knows or it is obvious from the circumstances”.

This amendment also aligns with the wording of Art. 26 UPCA.

The provision on the exhaustion of exclusive rights has also been adjusted, introducing a rule allowing the patent holder to oppose further commercialisation of a product under certain circumstances.

The Directive 2004/48/EC on the enforcement of intellectual property rights is also included in the new Act. Corrective measures, such as recall or definite removal from the channels of commerce, or destruction, may now be taken against products which the infringement concerns.

The old Act referred to “products manufactured without the consent of the proprietor of the patent”. Corrective measures such as recall, destruction, change or detention can now also be applied in relation to infringing products that are manufactured legally in another country but then offered for sale in Sweden.

A patent application that was under processing at the turn of the year 2024 is still processed according to the 1967 Act until the case is concluded. However, all patents that have already been granted will be handled according to the new Act.

Supplementary protection certificates

Another update of administration practice, independent of the new Patent Act, is the calculation of supplementary protection certificates.

In a decision (PMÄ 7804-24) of November 11, 2024 by the Swedish Patent and Market Court (PMD), article 13 of the regulation of supplementary protection certificates means that the duration of a certificate shall reflect the time between the filing date of the patent application, including the fling day, and the approval date for marketing the product.

The calculation method expressed by PMD generates one extra day of protection compared to the earlier calculation method applied by PRV, however, the duration can never exceed the maximum of five years.

PRV applies the new calculation method to all pending applications for supplementary protection certificates.

Maria Zamkova is CEO at Fenix Legal. She has a master’s degree in industrial design and is a registered EUIPO trademark and design attorney as well as a patent attorney. She can be contacted at info@fenixlegal.eu