Setterwalls successfully represented Europrofil in dispute concerning alleged patent infringement

Setterwalls has represented Europrofil AB (Europrofil) in a patent dispute in the Patent and Market Court. The overall issue in the case was whether Europrofil was guilty of patent infringement. By judgment announced on February 28, 2019, the Patent and Market Court confirmed that Europrofil’s marketing of two different floor deck forms did not consitute direct or contributory infringement of the patent claims. 

Ergonomic Construction Sweden AB (ECS) sued Europrofil for infringement of a patent concerning floor deck forms. The infringement claims concerned two different products and methods. According to ECS, Europrofil’s marketing constituted direct as well as contributory infringement of each of two different patent claims (one method claim and one product claim). In a judgment announced on 28 February 2019, the Patent and Market Court dismissed all infringement claims and ordered ECS to compensate all of Europrofil’s litigation costs. The case concerned technical as well as legal issues. In the relatively compenhensive reasons for the decision, the Patent and Market Court make several statements that may be of general interest.

First, the reasons include a comprehensive analysis of the correct interpretation of the concept of “offering” in Section 3 of the Patent Act. In this case, the key issue was whether Europrofil could be deemed to have offered a method by publishing on its website a product catalogue that included certain instructions for working a method, even though it was undisputed that Europrofil had ceased selling the components required for working the method. The Patent and Market Court stated that the publication of the catalogue could not be seen as a means for making a commercial offer to the market and that the publication could not be deemed to have been made with a view to transferring any rights to work the method to any customers. In light hereof, the Patent and Market Court held that the publication of the catalogue did not constitute an “offering” in the sense of the Patent Act. Also, the Patent and Market Court sheds some light on the interpretation of the concepts of “providing”, “offering” and “means” in the provision regarding contributory infringements in Section 3 of the Patent Act.

Secondly, the Patent and Market Court discusses the interpretation of patent claims. The Patent and Market Court states that patent claims shall be contrued in light of the inventive concept and that the inventive concept is defined in relation to the state of the art. Given that the patent at issue contained an “extremely limited” account of the state of the art and that ECS did not invoke any evidence concerning the state of the art or the common general knowledge of the skilled person, the Patent and Market Court held that it must start from a narrow, literal interpretation of the patent claims. Further, the Patent and Market Court noted that the Patent Office’s remarks during the prosecution of the patent application supported such narrow, literal interpretation of the scope of protection. Based on this interpretation, the Patent and Market Court concluded that the methods and products at issue did not infringe the patent.