Setterwalls has successfully represented a pharmaceutical company in a patent dispute before the Patent and Market Court of Appeal

Setterwalls has secured a second consecutive victory in a high-stakes pharmaceutical patent dispute, with the Patent and Market Court of Appeal upholding the Patent and Market Court’s judgment that the asserted patent was invalid and that the infringement claims must be dismissed. The appellate decision confirms the lower court’s reasoning on both lack of inventive step and insufficient support for auxiliary request claims in the application as filed.  

Background: First-Instance Win Before the Patent and Market Court
The dispute concerned a patent claiming a specific salt (the tosylate salt) of a known cancer agent. While the patent was still in force, the patent holder sued for infringement and sought preliminary and final injunctions.

In its judgment of 25 January 2024 (you can read more about it here), the Patent and Market Court found that the principal claim lacked inventive step. The Court held that a skilled person would have performed a routine salt screen and included the tosylate salt within such testing, rendering the claimed subject matter obvious.

The same conclusion applied to the first auxiliary request, as the addition of “for oral administration” did not change the substance or scope of the claim, which still concerned the salt per se rather than a specific composition or preparation. As to the second auxiliary request, the Court determined that the claim lacked support in the application as filed. Given that the original application was directed to combination treatment, the mono-treatment claim by oral administration was deemed to fall outside its scope and to constitute an impermissible intermediate generalisation.

Because the patent was held invalid, the infringement claims were dismissed.

The Appeal: Patent and Market Court of Appeal Affirms
The Patent and Market Court of Appeal affirmed the lower court’s decision invalidating the patent in suit in Sweden and dismissing the related infringement claims.

On inventive step, the Court endorsed the first‑instance decision and found the claim obvious in light of the closest prior art and common general knowledge. Given the compound’s poor aqueous solubility at the priority date, a skilled team would have conducted routine pre‑formulation work, including a salt screen with strong acids, with a reasonable expectation of forming a suitable, stable salt. On that basis, the relevant product claim lacked inventive step.

Auxiliary patent claims also failed. Adding “for oral administration” did not change the product‑by‑itself nature of the claim and did not confer inventiveness. A “second medical use” formulation limited to oral administration for cancer treatment was rejected for added matter.

As a result, the infringement claims were dismissed. The judgment is final and not subject to further appeal.

[see Patent and Market Court of Appeal’s decision of 30 October 2025 in case PMT 2466-24]