Interim injunctions may be based on partially invalid claims

Traditionally, the Swedish courts have been restrictive in allowing patentees to overcome prior art by amending patent claims in invalidity proceedings. Claim amendments have been accepted by the courts only in matters such as correcting obvious clerical errors or by inserting a term from the written specification into a claim for purposes of making the claim more precise.

In proceedings on interim measures, which are routinely requested by patentees in Swedish patent litigation, the appeal courts' view has been that interim injunctions can be granted only on the basis of existing claims, thus disregarding any requests for claim amendments that the patentee may have made in the court proceedings in order to overcome prior art.

However, a 2007 revision of the Patent Act introduced a new and liberal approach to claim amendments in court proceedings. Since 2007 the Patent Act has explicitly stated that the claims of a disputed patent may be restricted by rewriting the claims. Following this amendment, in a decision of 29th March 2010 the Svea Court of Appeal overruled its previous position and concluded that a request for an interim injunction may be granted on the basis of a partially invalid patent claim, provided that it can be anticipated by the court that the partial invalidity will be cured by claim amendment in the subsequent court proceedings (McNeil AB v Niconovum AB (Ö 9316-09), Svea Court of Appeal 29th March 2010).

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