Destruction of patent protected products manufactured outside Sweden

– Is Section 59 of the Swedish Patents Act on corrective measures contrary to EU law?

Abstract

The possibility for a patent holder that has suffered an infringement to apply for corrective measures such as, e.g. recall or destruction of the infringing goods serves the purpose of enforcing a court-ordered prohibition in practice and is an important tool in upholding the exclusive right. According to Section 59 of the Swedish Patents Act1, “upon a claim by a party that has suffered a patent infringement, the Court may, insofar as is reasonable, decide that a patent-protected product that has been manufactured without the consent of the patent holder shall be recalled from the channels of commerce, changed, taken into custody for the remainder of the patent term or be destroyed or that some other measure shall be taken in respect of it. The same applies to implements that have been, or have been intended to be, used in connection with the infringement.” ²