Posted: August 28th, 2019
Three years with the Swedish Patent and Market Court
Today, three years after its inception on 1 September 2016, and with more data now available, it is time to follow up on our 2017 blog post regarding the efficiency and reliability of patent cases adjudicated by the Swedish Patent and Market Court.
By Erik Ficks and Fredrik Nilsson, Roschier
Expectations from 2017
In our 2017 blog post, we concluded that the court’s first year was a success in terms of judgments being delivered swiftly even though its caseload ended up being almost 15% higher than expected. In joint infringement and invalidity proceedings, we expected that a first instance judgment would be rendered within one to two years from the case being filed with the court, thereby putting Sweden among the most efficient jurisdictions in Europe for resolving patent disputes.
Furthermore, having drawn expertise from multiple courts, other government agencies, and the private sector all over Sweden, we expected Sweden to be fit for purpose and a safe jurisdiction in which to settle disputes.
Now, two years after our previous blog post, we can conclude that our expectations have been met.
Quick time to judgment and a relatively low level of appeals
During the calendar year 2018, a total of 69 patent cases were processed. This includes old cases from previous years and cases filed during 2018. Among all of the cases decided in 2018, the average time from filing to judgment was 19 months, with the fastest case taking 10 months from filing suit to judgment. It is also interesting to note that the commonly used interim measure requesting an order to provide documents only took 1.5 months to decide on average.
Evaluating the quality of the Patent and Market Court’s judgments, one can look at the frequency of an appeal being lodged, assuming that a judgment that is not appealed is accepted by both the plaintiff and the defendant. This is of course a simplification since there might be other factors, such as the cost of litigating or a settlement, playing the decisive role, but these other factors are also true for civil disputes in general. Consequently, comparing the frequency of appeals in civil disputes in general and in patent cases in particular might offer some relevant guidance.
During the calendar year 2018, only 25% of all decisions in patent cases brought, or 40% of those that went to trial, were appealed. This number is lower than the frequency of appeals in all civil disputes settled in the Stockholm District Court (which is the most common forum in which large companies in the private sector litigate).
Taking the above into consideration, it can be concluded that, as of the end of 2018, the Patent and Market Court had overcome any challenges it faced in having to take on cases from the previous system as well as in putting its new administration in place, to meet the expectations of a quick time to judgment and the delivery of judgments of good quality. Sweden therefore lives up to the promise of being fit for purpose and a safe jurisdiction in which to settle patent disputes.
2019 and beyond
Looking into the future, it may be noted that the Patent and Market Court established a target for 2019 regarding the time to judgment. Unless a motion to stay the proceedings is granted, no proceedings will take longer than two years from the date on which the case is brought. The Patent and Market Court also explicitly stated that they will work to reduce the time to judgment even further. In other words, one can expect even swifter processes than 19 months on average (as was the case in 2018) in the future.