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Legislative Implementation of Flexibilities - Sweden

Title:Sections 44-49 of the Patents Act No. 837 of 01/12/1967 as last amended by Law No. 159 of 01/04/2004
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

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. A compulsory license for the use of an invention in Sweden may be granted if

1. three years have expired from the granting of the patent and four years from the filing of the patent application,

2. the invention is not used to a reasonable extent in Sweden, and

3. there is no acceptable reason for the non-use of the invention.

For the purposes of the application of the first Paragraph, item 2, use of an invention equals importation of the invention to Sweden from a State within the European Economic Area or a State which is party to, or a territory which is member of, the World Trade Organization (WTO).

46. A holder of a patent for an invention of which the exploitation is depending on a patent which belongs to someone else may be granted a compulsory license to exploit the invention protected by the other patent. Such a license may be granted only if the applicant proves that the first-mentioned invention constitutes a significant technical progress of considerable economic interest compared with the other invention.

If a compulsory license is issued in accordance with the first Paragraph, the holder of the patent for which a compulsory license has been granted is entitled to obtain, on reasonable conditions, a compulsory license (cross-license) to exploit the other invention.

46a. A plant breeder who can not obtain or exploit a plant breeders' right without infringing a prior patent, may obtain a compulsory license to exploit the invention which is protected by the patent, inasmuch as such a license is necessary for the plant variety to be exploited. Such a license may be granted only if the applicant proves that the plant variety constitutes a significant technical progress of considerable economic interest compared with the invention.If a holder of a patent obtains a compulsory license in a plant breeders' right, the holder of the plant breeders' right is entitled to obtain, on reasonable conditions, a compulsory license (cross-license) to exploit the invention of the holder of the patent.Provisions on the possibility for the holder of a patent on a biotechnical invention to obtain, under certain conditions, a compulsory license to exploit a protected plant variety are contained in Chapter 7, Article 3a, of the Act on the Protection of Plant Breeders' Rights (1997:306).

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 favor 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 person who can be assumed to exploit the invention in an acceptable manner and in accordance with the license. The applicant must also prove that he or she has unsuccessfully turned to the patent holder to obtain a contractual license on reasonable conditions.

A compulsory license does not prevent the patent holder from exploiting himself or herself the invention or to grant licenses. A compulsory license may be assigned to someone else only together with a business where it is exploited or intended to be exploited. In respect of such compulsory licenses as mentioned in Article 46, first Paragraph, and Article 46a, first Paragraph, also applies that the license may be assigned only together with the patent or the plant breeders' right to which the license applies.

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