Westerberg & Partners Advokatbyrå Ab updates

Calculating copyright infringement damages using hypothetical licence fees
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 11 February 2019

The Supreme Court recently rejected the application of a hypothetical licence fee to calculate reasonable compensation for massive copyright infringement through the operation of an illegal streaming site. This decision raises several interesting questions, including to what extent an infringer's illegal business model should be taken into account when calculating reasonable compensation.

No infringement where software backups are passively stored
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 24 December 2018

The Supreme Court recently declared that the mere passive storage of backups of copyrighted software with expired licences does not constitute copyright infringement. The judgment is significant as it clarifies which actions constitute copyright infringement and, from a practical perspective, relieves licensees from having to mine their backup servers in pursuit of potential 'sleeper' infringements.

Patent and Market Court rules on global retransmissions of TV broadcasts
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 22 October 2018

On the ever-growing market for streaming services and online access to TV broadcasts, illegal services are common and sometimes difficult to shut down due to their technical complexity and the multi-jurisdictional scope of the infringing activities. The Patent and Market Court recently held three persons liable for global retransmissions of TV broadcasts, sentencing them to prison and awarding rights holders significant compensation for damages.

Judgment on public procurement puts parallel importers at a disadvantage
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 17 October 2018

The Stockholm Administrative Court recently ruled that the obligation on tenderers of public procurements of medicinal products to have routines which ensure that the use and handling of active ingredients would have as little effect on the environment as possible, as well as the obligation that they routinely survey and have dialogue with their subcontractors, were permissible. The decision has been appealed to the Administrative Court of Appeal in Stockholm, which has yet to make a decision.

Drinking water covered by product liability
Westerberg & Partners Advokatbyrå Ab
  • Litigation
  • Sweden
  • 02 October 2018

In a recent decision, the Supreme Court established that drinking water is a product within the meaning of the Product Liability Act. Therefore, the determination of damages for municipalities and municipal companies which supply contaminated drinking water can be tried in accordance with this act. If a clear causal connection is established, it will be much easier for injured parties to obtain compensation.

New Trade Secrets Act implements EU directive
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 20 August 2018

A new Trade Secrets Act, which implements the EU Trade Secrets Directive, recently entered into force. Even if the strengthened position for trade secret owners is welcome, discrepancies remain between trade secrets and other IP rights. Further, any dispute on trade secrets will not be subject to the jurisdiction of Sweden's specialised IP courts – jurisdiction will remain vested in the courts of general jurisdiction and often subject to labour dispute rules.

Private copying levies on technically independent devices
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 23 April 2018

The Supreme Court has rendered its judgment in a long-running dispute concerning private copying levies on mobile phones with an external memory device. The court found that the right to collect private copying levies extends to devices which consist of two technically independent devices, even if the independent devices are not "especially suited for the production of copies of works for private use" and would thus not be subject to private copying levies if sold individually.

Forfeiture of Pirate Bay domain names
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 05 March 2018

The Supreme Court has confirmed that domain names are property which can be forfeited to the state, providing rights holders with another measure in their fight against online infringement. The court noted that the concept of 'property' is central for the rules on forfeiture. It concluded that a person who registers a domain name is granted an exclusive right to that domain name and the right to a domain name may be subject to dispute resolution and entitlement claims.

Pharmaceutical companies request Patent and Registration Office to reassess decisions
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 22 November 2017

In eight landmark decisions, the Patent and Market Court of Appeal decided that the terms for already granted supplementary protection certificates (SPCs) should be recalculated in order to reflect a 2015 European Court of Justice decision regarding the method for calculating SPC terms under EU Regulation 469/2009. Several pharmaceutical companies that had been granted SPCs noted that the Patent and Registration Office's method of calculating SPC terms was not in line with EU law.

No presumption of imprisonment for copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 09 October 2017

The Supreme Court recently clarified that copyright infringement is not a crime where the presumed penalty is imprisonment. This decision marks a change in relation to previous case law regarding the penalty for copyright infringement through illegal file sharing. The Supreme Court has now aligned the view on the severity of IP infringements. This is a welcome development, although rights holders may have benefited from a stricter view and a development in the opposite direction.

Rights holders should be careful when requesting preliminary injunction
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 15 May 2017

The holder of an IP right which considers that right to be infringed will often seek a preliminary injunction. If the injunction is wrongfully granted and then overturned, the plaintiff is liable to pay damages to the defendant. A recent Supreme Court case discussed several issues relevant to proceedings concerning such damages and damages in general and is likely to be a leading case for years to come.

New pricing principles applied in decision on orphan drugs
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 12 April 2017

The Dental and Pharmaceutical Benefits Agency recently reassessed the reimbursement status of Cerezyme and VPRIV – two products indicated against Gaucher's disease – and decided to decrease the products' prices. This caused the marketing authorisation holders behind the products to withdraw them from the reimbursement system. Consequently, there is no longer a product against Gaucher's disease that is nationally reimbursed in Sweden.

Guidance on preparatory patent infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 06 March 2017

In a recent case, the claimants brought forward other circumstances to demonstrate that a preparatory patent infringement had occurred. The Stockholm District Court was clear that it must be demonstrated that preparatory acts are undertaken with the intent to commit or promote patent infringement. The decision appears to indicate that stating in general terms that valid patent rights will be respected is sufficient to oppose claims of preparatory infringement.

Sweden reviews financing and pricing
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 08 February 2017

The government recently issued new directives to review the pricing and reimbursement system and the national financing system for medicinal products. The government declared that the existing system is complex and complicated and must be improved in order to operate a modern healthcare system. The review seeks to find a clear division of responsibilities between the national government and local county councils and regions and to establish foreseeable processes for stakeholders.

Contract interpretation in digital music industry
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 12 December 2016

The Svea Court of Appeal recently shed much-needed light on whether a right to digital use can be established through the interpretation of recording contracts from a time when such use did not even exist. The case shows how a party to a contract can be found to have consented to new terms regarding digital use through passivity and confirms that a recording artist has standing to seek an injunction on his or her own without the co-creators.

Prison for company executives for copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 07 November 2016

The Stockholm Patent and Market Court recently sentenced four company executives to up to 18 months in prison and ordered them to pay fines and damages amounting to several million Swedish kronor for copyright and trademark infringement through the online sale of counterfeit furniture. In light of the considerable damages, forfeiture of illegal gains and criminal liability, the story is likely to continue with an appeal.

No copyright protection for sport broadcasts
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 03 October 2016

The Supreme Court recently ruled on whether linking to live broadcasts of hockey games was communication to the public, and whether the live broadcasts met the requirements for copyright protection. The court made clear that the EU standard of copyright fully applies in Swedish law. Following this judgment, it would appear that these types of broadcast can rely only on the protection of related rights.

Off-label use: a comparator in health technology assessments
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 28 September 2016

The Dental and Pharmaceutical Benefits Agency (TLV) recently denied reimbursement for an orphan drug for the treatment of chronic thromboembolic pulmonary hypertension based on a health technology assessment which took into account off-label use of treatments for pulmonary arterial hypertension (PAH). The Stockholm Administrative Court has since upheld the TLV decision, agreeing with the TLV's reasoning that the orphan drug should be compared with available PAH treatments.

Car rims not under spare parts exemption may enjoy Community designs protection
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 25 July 2016

In the first decision of its kind from a Swedish appellate court, a Svea Court of Appeal panel recently found that car rims do not constitute spare parts and thus enjoy the protections offered by the EU Community Designs Regulation. The court's findings give the spare parts exemption a fittingly narrow and functional interpretation in line with the regulation.

E-cigarettes no longer considered medicinal products in Sweden
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 25 May 2016

The Supreme Administrative Court recently ruled that e-cigarettes not marketed for smoking cessation purposes should not be classified as medicinal products. The court stated that in order to be classified as a medicinal product, the product, if used as intended, must be capable of appreciably restoring, correcting or modifying physiological functions in human beings. It is not sufficient that the product has a pharmacological effect on the body's functions.

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