Why should intellectual property be considered in Swedish public procurements?

In a recent case in December 2017 the Swedish patent and market district court gave 200 million SEK (Around 20 million Euro) reasons of why companies offering services for the public sector should care about Swedish patent rights.

The court presented two interesting conclusions that technology companies interested in serving the Swedish public sector should know about.

  1. First, the decision teaches us a great lesson of the importance of performing a freedom to operate search.
  2. Second, it highlights the legal status of gathering consent and that one never should presume one’s right to use other’s patented technology.

The plaintiff and the defendant were individually appointed to perform services for the Swedish authority Svenska kraftnät (Swedish power grid authority) in a public procurement proceeding back in 2011. The authority selected to assign both parties different areas of the project, a system for electric power transmission respective providing polymeric solid cables.

The defendant could not successfully claim that the plaintiff should have raised concerns already in the public procurement proceedings and the defendant was therefore proven guilty of using the plaintiffs patented technology without consent.

The court decided

The damages should be calculated based on the true value in which the plaintiff suffered, and not on a license analogy basis. Therefore, the defendant was sentenced to compensate the plaintiff for the partial lost affair in the public procurement, why the enormous amount of 20 000 000 Euro becomes legit.

(Read more in decision PMT 7403-15)

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