Westerberg & Partners Advokatbyrå Ab

Stockholm

Westerberg & Partners is a Swedish boutique law firm. We focus on what we do best. We assist our clients in identifying, analyzing, strengthening and protecting their rights - whether based on intellectual property (IP), contracts, treaties or regulatory frameworks. 

Updates

Healthcare & Life Sciences

Trilogue negotiations: originator company compensation for parallel imported products
Sweden | 27 February 2019

The Stockholm Administrative Court recently ruled that under the so-called 'trilogue negotiations' between pharmaceutical companies, the Dental and Pharmaceutical Benefits Agency and the Swedish regions could require an originator company to compensate them for products marketed by parallel importers.

Judgment on public procurement puts parallel importers at a disadvantage
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.

Pharmaceutical companies request Patent and Registration Office to reassess decisions
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.

New pricing principles applied in decision on orphan drugs
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.

Sweden reviews financing and pricing
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.

Off-label use: a comparator in health technology assessments
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.

E-cigarettes no longer considered medicinal products in Sweden
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.

Pricing agreements for products in reimbursement scheme
Sweden | 10 February 2016

The Supreme Administrative Court recently handed down a long-awaited judgment in the case between the Dental and Pharmaceutical Benefits Agency and the Skane Region. The court departed from earlier judgments and stated that county councils and regions are permitted to enter into discount agreements with pharmaceutical companies for medicinal products which are included in the reimbursement scheme.

Named patient permission for unauthorised medicinal products – financial considerations
Sweden | 18 November 2015

The Stockholm Administrative Court of Appeal recently clarified the possibility to consider financial aspects when determining whether there are special requirements for granting a named patient permission. The court dismissed arguments that high prices and limited availability of an authorised medicinal product could constitute special requirements for a named patient permission for an unauthorised medicinal product.

Orphan drug denied reimbursement in health technology assessment
Sweden | 05 August 2015

A pharmaceutical company's recent application to the Dental and Pharmaceutical Benefits Agency (TLV) for a pricing and reimbursement decision regarding a medicinal product with orphan drug status was rejected. The decision appears to be the first in which a product under off-label use has been used as a comparator in the TLV's health technology assessment.

Medicinal products' approved indications irrelevant to substitutability
Sweden | 27 May 2015

The Uppsala Administrative Court has upheld a Medical Products Agency decision that a generic inhaler was not considered substitutable within the substitutability groups for which the generic company had applied. The court denied substitutability based on the generic inhaler's incompatibility with a spacer mentioned in the original inhaler's summary of product characteristics.

Pricing uncertainty for orphan drugs and innovative new drugs
Sweden | 11 February 2015

The Administrative Court of Appeal recently issued a judgment on the pricing of orphan drugs in the reimbursement system. The court considered whether a maximum price cap exists with regard to the cost-effectiveness calculation within the health technology assessment. The outcome is unsatisfactory for pharmaceutical companies, particularly those with orphan drugs or innovative new drugs in their product portfolio.

Agreement to limit distribution of private healthcare providers' profits
Sweden | 05 November 2014

The government and the Left Party recently reached agreement on initiatives aimed at restricting private companies from engaging in certain publicly funded healthcare, care and educational services and, as part of that limit, their right to distribute profits. Much of the criticisms leading up to the suggested initiatives may be addressed by stricter tender procedures.

Discount agreements for medicinal products in reimbursement system
Sweden | 10 September 2014

The Administrative Court of Appeal recently held that it is not possible for county councils and regions to acquire a discount on the price of medicinal products in the reimbursement system. The decision has been appealed to the Supreme Administrative Court. It remains to be seen what will happen to existing discount agreements within the reimbursement system should leave to appeal not be granted.

Cooperation framework for introduction of new innovative medicinal products
Sweden | 25 June 2014

The Swedish Association of Local Authorities and Regions (SKL) represents the county councils which operate the majority of Swedish hospitals. The SKL has put in place a new cooperation framework for the introduction of new innovative medicinal products. The framework seeks to enable county councils to act as strong buyers of medicinal products, which would lead to, among other things, faster access to new treatments.

Intellectual Property

Watch out! Patent and Market Court of Appeal finds watch protected by copyright
Sweden | 27 May 2019

For the first time, the Patent and Market Court of Appeal has confirmed that a watch can be protected by copyright as a work of applied art, even in a crowded design field. The decision enables rights holders to not only pursue counterfeits on the basis of trademark infringement, but also to prosecute copycat watch models on the basis of copyright protection in physical and digital environments.

Preliminary injunction denied in Swedish darunavir SPC proceedings
Sweden | 11 March 2019

The Patent and Market Court of Appeal recently handed down a preliminary injunction ruling in Sandoz v GD Searle LLC relating to the supplementary protection certificate (SPC) for darunavir. The ruling clarifies that SPCs enjoy a validity presumption for the purpose of a preliminary injunction ruling in the same way that patents do. However, in the instant proceedings, the court found that Sandoz, against which the lower court had issued a preliminary injunction, had managed to rebut the presumption.

Calculating copyright infringement damages using hypothetical licence fees
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
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
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.

New Trade Secrets Act implements EU directive
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
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
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.

No presumption of imprisonment for copyright infringement
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
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.

Guidance on preparatory patent infringement
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.

Contract interpretation in digital music industry
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
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
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.

Car rims not under spare parts exemption may enjoy Community designs protection
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.

Swedish jurisdiction in national trademark cases
Sweden | 08 February 2016

The Supreme Court recently clarified the scope of jurisdiction of the Swedish courts in infringement actions involving Swedish trademarks where the infringer is domiciled outside the European Union or European Economic Area. Due to the territorial character of nationally registered trademarks, there is a legal interest for the country of registration to hear cases where a national trademark right has been invoked.

Responsibility for third-party violation of preliminary injunction
Sweden | 11 January 2016

The Supreme Court has strengthened the position of copyright holders in enforcing their rights against companies trying to circumvent court-ordered injunctions. Companies are generally not responsible for the actions of third parties. However, the company can be held responsible if it fails to prove that it has taken reasonable measures to prevent the third party from violating the injunction.

Supreme Court confirms broad scope of information orders
Sweden | 19 October 2015

The Supreme Court recently confirmed that the Swedish implementation of the EU IP Rights Enforcement Directive goes further than the directive in relation to the information on infringing goods that a party can be ordered to provide. Under Swedish law, an information order can relate not only to goods which have been established to be infringing, but also to other specimens of the goods sold before and after the infringing goods.

Cancellation of trademarks and importance of market surveys
Sweden | 13 April 2015

The Svea Court of Appeal recently clarified the method used by the courts to determine whether a trademark should be cancelled due to lack of distinctive character or degeneration. The court also provided guidelines on the importance of rights holders enforcing their rights and the value of well-conducted market surveys at the time of registering a trademark.

Court provides clarification on use of logotypes
Sweden | 02 February 2015

In certain situations the use of a third party's trademark is allowed – for example, to show that services for another business's products are offered. The Stockholm District Court recently clarified the distinction between the use of logos and word marks for such purposes, confirming that while the former create the impression of a commercial connection between two undertakings, the latter do not.

Trademark infringement – presumption of imprisonment?
Sweden | 19 January 2015

Whether a crime should be considered as punishable by imprisonment is based on the general penal value of the crime. In a recent case the Supreme Court considered whether a prison sentence is the presumed penalty in counterfeiting cases based on trademark rights. If the penal value is less than one year, it held, prison should be the last resort.

Use of competitor's trademark in product catalogue
Sweden | 22 September 2014

The Supreme Court recently considered Mon.Zon's use of Layher's trademark in its product catalogue. The court held that the product catalogues were directed only to prospective buyers and that the use of a photograph displaying Layher's trademark implied no connection between Layher and Mon.Zon. The court concluded that Mon.Zon had caused no damage to the trademark's indication of origin function.

Sweden and Baltic states form Unified Patent Court regional division
Sweden | 07 April 2014

Sweden has recently signed an agreement on the establishment of a Nordic-Baltic regional division of the Unified Patent Court. According to the agreement, English will be the only language of proceedings and the seat of the regional divisional will be in Stockholm. The Swedish national court structure for IP disputes is under revision.

Damages due to revoked interim injunction
Sweden | 10 March 2014

HTC held a patent protecting the cleaning product Twister. HÅTE introduced a competing product and HTC instigated proceedings on the basis of patent infringement. The Gota Court of Appeal found that HÅTE's sales of the patented product should not be deducted from the compensation for lost profits, as HÅTE had already sold small quantities of Twister before the injunction.

Supreme Court Sets Threshold for Copyright in Applied Art
Sweden | 07 September 2009

In a landmark decision, the Supreme Court has held that the design of the Mini Maglite torch is sufficiently original and individual to enjoy copyright protection. In its reasoning the court thoroughly set forth the legal position and the threshold of originality required for copyright protection for applied art.

IP Law Amendments Implement Enforcement Directive
Sweden | 18 May 2009

Sweden has now implemented the EU IP Rights Enforcement Directive. Some of the key changes relate to the right to information, publicity measures and corrective measures. Although the amendments have reinforced the penalties available within the IP field, there remain many unresolved issues to be determined by the courts.

Pirate Bay Crew Ordered to Walk the Plank
Sweden | 27 April 2009

The Stockholm District Court has rendered its judgment in the case against the operators of the Pirate Bay, considered to be the world's most visited file-sharing website. In a major victory for the entertainment industry, the defendants were each sentenced to one year's imprisonment and ordered to pay Skr30 million in damages to the rights holders concerned.

Product Regulation & Liability

One small step for alcoholic beverage marketers, one giant leap for wine critics
Sweden | 06 June 2019

The Patent and Market Court of Appeal recently assessed the use of quotations from wine reviews in ads and found the terms 'bargain' and 'recommended' and the phrase 'an excellent alternative for the big party' acceptable under the applicable Swedish and EU law. This ruling marks a small but significant shift in the strict Swedish jurisprudence on the subject and may give market actors a reason to pop a celebratory bottle.