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Patents

Picture patents

A patent can be defined as "a time-limited, commercial and state-sanctioned exclusive right to technical inventions of an assured minimum quality" (translated quote by Anders Hagman, in Gentekniken och juridiken / Källa no. 38, published by the Swedish Council for Planning and Coordination of Research). In this case, the time limitation means that the patent can be enforced for 20 years at the most. The invention, which can be a procedure, device, use, or product should be able to be applied industrially and to be repeated by other researchers. Such a technical invention can concern computer program-related inventions as well as microbiological procedures and products. For more information, see the page on patents on genetic-technical inventions. The technical demand does not exclude, for example, toys or inventions within the agricultural sector from items able to be patented. In recent years there has been a lively discussion regarding patents on business methods, which have made inroads in countries such as the US. In Europe, there exists a fundamental requirement for a "technical effect" from a patentable invention.

A patent is obtained through an application procedure consisting of a rather careful pre-investigation into whether the invention in question fills the legal requirements of a patentable invention. Obtaining a patent is a fairly costly procedure, especially as one must as a rule obtain patents in many countries for the protection to be effective. A patent is sought and decided on in each individual country. The rules regarding a Swedish patent are presented in the patentlagen (law on patents) (SFS 1967:837). In Sweden and 30 other European countries, a patent can also be applied for according to the European Patent Convention of 1973 (EPC, last updated 2005). Anyone wishing for a patent also in non-european countries may instead seek patent according to the Patent Cooperation Treaty (PCT), which is adminestered by the World Intellectual Property Organization (WIPO). PCT has recently been revised (see the "regulations").

Community patent

For decades in Europe, there has been an ongoing negotiation regarding a proposal for a patent applicable to the European Community - a Community Patent - which is to encompass the entire EU with a unitary right. Trough the so called Lisbon Strategy it is urgent that a common patent system in Europe is realised. Even though European patents can be granted today, each Member State still require that in order for it to be legally valid in their territory the European Patent is translated into its official language. Translation costs thereby make patenting in Europe significantly more expensive than in the US or Japan. This difficulty is increased by the need to work in different european national court systems in case of dispute. Also this has to be solved.

The European Commission has offered a proposal on translation arrangements for EU patents, but then in December 2010, after failures to resolve concerns by several governments, some countries asked to be allowed to cooperate on a single patent. On 10 March 2011, the Council of Ministers authorised the use of “enhanced cooperation” for unitary patents in all EU countries except Italy and Spain, a first step towards a Community Patent. The negotiations have now led to an agreement, including the creation of a community patent court and a reduction of the patent application fee from 36 000 euro to 4 725 euro. The Swedish Government has decided upon a public inquiry which should suggest needed legislative changes as well as a new patent act.

Recent changes in Swedish law

The Swedish Law on Patents was changed July 1, 2007, as a result of the changed EPC rules, among other things. The content requirements for an application have thereby become more globally uniform, which makes it easier to apply for a patent in multiple countries simultaneously. Further changes adjust the law to a new text from EPC (2005), see the bill on harmonized patent right. A new possibility for restriction of patents in administrative order has now been introduced, which allows a patent holder to avoid costly court procedures by limiting a patent through the Swedish Patent and Registration Office, making it invalid in certain aspects. The Swedish Riksdag has also approved of an agreement to the European Patent Convention that aims at reducing the cost of translating patents. As this is now agreed upon, the demand for a full translation of patents into Swedish in order to have a European patent recognised in Sweden, is no longer in place.

International patent cooperation

International cooperation is regulated through Paris Convention for the Protection of Industrial Property, which is administered by WIPO. Besides the important Patent Cooperation Treaty (PCT) there is also a Patent Law Treaty (PLT), which is a treaty providing common, or minimum, standards for many of the procedures involved in making a patent application. Sweden is part of both treaties, as well as the 'TRIPs Agreement' - the Agreement on Trade-Related Aspects of Intellectual Property Rights. This is managed by the WTO (World Trade organization, which replaced the General Agreement on Tariffs and Trade, or GATT, in 1995). It places important and harmonizing demands on member countries' patent rights. Public health issues to which the TRIPs agreement has relevance has been regulated by the Doha declaration.

The authorities

Authorities that manage patent applications and can grant a patent in Sweden are the Swedish Patent and Registration Office (PRV), the European Patent Office, EPO and the World Intellectual Property Organization, WIPO. EPO is not a European Community authority, it encompasses all EU countries but also some outside countries. Note that a patent application to PRV, EPO, or WIPO contains a requirement that it be published after 18 months. Publication takes place before a patent possibly is granted. If one is unsure about the patentability of one's invention after the pre-investigation, it can be wise to consider a withdrawal of the application, otherwise it it will become part of the common and public state-of-the-art.

Design protection

To a degree, design protection complements patent right, in that exclusive rights for up to 25 years can be obtained for an outer appearance or for a decoration (Swedish law SFS 1970:485 and ordinance SFS1970:486). These Swedish regulations are in accordance with the European Parliament's and Council's Directive 98/71/EG on design protection and Regulation (EC) No 6/2002 of 12 December 2001 on Community designs.

Last updated: 2014-01-14

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