Q&A: patents in Denmark

Patent enforcement proceedings

What legal or administrative proceedings are available for enforcing patent rights against an infringer? Are there specialised courts in which a patent infringement lawsuit can or must be brought?

The general procedural rules in the Administration of Justice Act, together with certain provisions in the Patent Act, regulate the civil procedure for claims for patent infringements, invalidation and declaratory actions.

Proceedings for such claims are typically instigated at the Maritime and Commercial High Court, which serves as the first instance patent court in Denmark. Verdicts from the Maritime and Commercial High Court can be appealed to the High Court of Eastern or Western Denmark or, in rare circumstances, to the Supreme Court.

The swiftest way to enforce a patent right against a potential infringer is by submitting a request for a preliminary injunction to the Maritime and Commercial High Court. Preliminary injunctions are, in essence, a patent owner’s primary remedy, as they function as an effective and fast way of stopping infringing acts. Once a preliminary injunction is granted, it must be followed up by main proceedings to confirm the preliminary injunction with a permanent injunction.

What is the format of a patent infringement trial?

Court proceedings are instigated when the plaintiff submits a writ of summons to the court. The court gives the defendant a certain period (as a starting point, two weeks, which is often extended to four or six weeks) to submit a statement of defence. Subsequently, the parties participate in a preparatory court meeting (often held via telephone) with the court to outline the process leading up to trial.

In patent cases, court-appointed experts often provide statements regarding information relating to questions of validity or infringement. Subsequent to these expert statements, the parties may, and normally do, exchange further pleadings with the court. Depending on the complexity of the case, the oral hearing usually takes place 12 to 24 months from the date on which the writ of summons was filed.

In Danish patent cases, the general principle of free evaluation of evidence applies. The plaintiff must provide evidence for its claims (eg, regarding the patent infringement or patent invalidity). The courts are thus relatively free of constraints in their evaluation of evidence, and documents, affidavits and oral testimonies are relied on. The courts will, however, only rely on the evidence submitted by the parties during the court case. If evidence is likely to be destroyed by one party, a procedure securing such evidence or parts thereof can be used on request from the other party or parties. Technical evidence may be produced by submitting technical literature, but the actual technical evidence is produced by way of statements from court-appointed experts.

As a general rule, two technical judges and one legally trained judge (the presiding judge) participate in court cases at the Maritime and Commercial High Court. In cases of a particular complexity or fundamental nature, two additional technical or legally trained judges may participate, if the Maritime and Commercial High Court decides so. Hence, a patent owner can expect both high-level technical and judicial expertise. Jury trials do not exist in patent litigation.

In patent cases, court-appointed experts usually provide statements regarding the validity or infringement questions at hand. Normally, these expert statements play a substantial role in the court’s adjudication of the case. Expert witnesses summoned by only one of the parties are generally not allowed to be heard, except in preliminary injunction cases. As of 1 July 2017, new rules regarding court-appointed experts, which, among other things, allow the possibility to produce declarations from experts appointed by each party, entered into force. These rules generally allow for experts to play an even bigger part in litigation.

Cross-examination of witnesses is permissible, although it is subject to certain limitations, as the opposing party can only ask questions within the scope of the questions asked on direct examination. If witnesses do not show up for trial, the court may take coercive measures.

What are the burdens of proof for establishing infringement, invalidity and unenforceability of a patent?

The courts consider evidence on its merits, and there are generally no formal rules on evidentiary standards. Therefore, the courts can decide what emphasis they will place on evidence produced by the parties.

Generally, the burden of proof of a claim lies with the party submitting the claim in question, unless statutory provisions provide otherwise. With respect to patent infringement and damages claims, the aggrieved party holds the burden. In invalidity and unenforceability proceedings, the party who claims that the patent is invalid or unenforceable holds the burden. These parties must establish conclusive evidence supporting their claims. A mere probability or presumption of the justification of their claims is usually not sufficient to meet the burden of proof. However, in preliminary injunction cases, it is sufficient that the patent owner renders it probable that the fundamental requirements for the grant of a preliminary injunction are satisfied.

According to section 64a of the Patent Act, a presumption exists in relation to process patents where the subject matter is a process for obtaining a new product. In such a situation, an identical product will be presumed to be manufactured by use of the patented process.

Who may sue for patent infringement? Under what conditions can an accused infringer bring a lawsuit to obtain a judicial ruling or declaration on the accusation?

The general rule is that anyone with sufficient legal interest in the proceedings can bring an action before the courts. In the case of an infringement, proceedings will almost always be instigated by the injured party, namely the patent owner.

An accused infringer will usually claim non-infringement or invalidity of a patent, or both.

To what extent can someone be liable for inducing or contributing to patent infringement? Can multiple parties be jointly liable for infringement if each practises only some of the elements of a patent claim, but together they practise all the elements?

According to the Patent Act, contributory infringements are prohibited as no one except the patent owner may, without consent, exploit the invention by delivering, or offering to deliver, the means to carry out the invention (provided that the means relate to a core element of the invention and that the delivering or offering party knew or had reason to believe that the means were suitable and intended for such use). Consequently, parties can be held liable for inducing or contributing to patent infringement. This is no different in the case of multiple parties each performing some of the elements necessary for establishing infringement, if their practice together constitutes an infringement.

Can multiple parties be joined as defendants in the same lawsuit? If so, what are the requirements? Must all of the defendants be accused of infringing all of the same patents?

Multiple parties can be joined as defendants in one lawsuit.

The defendants can be accused of different types of infringements. For example, if one defendant has performed a patented method and another defendant has sold a product made from the patented method, they can still be sued in the same lawsuit.

The Administration of Justice Act further requires that certain procedural rules on venue and subject matter jurisdiction are met in order to join defendants in one lawsuit.

To what extent can activities that take place outside the jurisdiction support a charge of patent infringement?

Principally, a party can only be liable if the patent infringement is taking place in Denmark. Foreign activities having an effect in Denmark may, however, constitute patent infringement in Denmark. Indirect product protection means that the import and sale of a product in Denmark that has been manufactured in a foreign country according to a method that is patented in Denmark but not in the foreign country can be prohibited.

To what extent can ‘equivalents’ of the claimed subject matter be shown to infringe?

According to section 39 of the Patent Act, the extent of the protection conferred by a patent shall be determined by the claims. For the interpretation of the claims, the description may serve as a guideline. Hence, section 39 implements article 69 of the European Patent Convention (EPC) and prevailing Danish law is also in agreement with articles 1 and 2 of the Protocol on the Interpretation of article 69 of the EPC, which forms an integral part of the EPC.

Despite the absence of a codified literal implementation of article 1 and of the mentioned protocol in the Patent Act, case law from the Danish Supreme Court confirms the principle of non-literal equivalents in Denmark. Consequently, a party can be held liable for patent infringement even though the infringing device, process, etc, does not fall within the literal scope of the claims, if it is equivalent to the claimed invention.

As regards to what extent this doctrine can be claimed, the Danish courts follow the mainstream European approach in positioning themselves between the two extremes formed by the German and English courts.

What mechanisms are available for obtaining evidence from an opponent, from third parties or from outside the country for proving infringement, damages or invalidity?

The courts in Denmark may, under certain conditions, order the preservation of evidence or discovery of specific documents.

The courts can assist with preserving evidence outside the scope of the trial. A request must be filed with the relevant court of law being the district where the evidence is located. After the preservation of evidence has been carried out, the applicant must file a case on the merits.

A party may request that an opposing party or a third party disclose specific documents that are at such party’s disposal. A request for disclosure must be specific and concern documents of relevance to the matter. Furthermore, a request must contain information on the facts that the requested documents shall serve as proof of as well as the reasons on which the requesting party basis the request. A failure to comply with a request for disclosure can be met by adverse inference.

Owing to a judicial opt-out, Denmark is not bound by Regulation No. 1206/2001 on cooperation between the courts of the EU member states in the taking of evidence in civil or commercial matters. Discovery of evidence between Denmark and other countries is regulated by the Hague Evidence Convention.

What is the typical timetable for a patent infringement lawsuit in the trial and appellate courts?

Danish courts can jointly rule on issues of validity and infringement. Generally, it takes approximately 12 to 24 months to obtain a first instance decision in normal court cases, whereas it takes approximately six to nine months in preliminary injunction cases.

Appeals are heard de novo in all respects (eg, in relation to questions or issues regarding matters of law and evidence). An appeal case before the High Courts of Eastern or Western Denmark normally takes 18 to 24 months.

However, the above is dependent on the complexity of the case.

What is the typical range of costs of a patent infringement lawsuit before trial, during trial and for an appeal? Are contingency fees permitted?

The cost of litigation depends on the complexity of the case. A first instance case will cost approximately 500,000 Danish kroner for simple cases and between 2 million kroner and 4 million kroner for more complex (pharmaceutical) cases.

Preliminary injunction cases typically incur costs of 500,000 kroner for simple cases and 3 million kroner for more complex (pharmaceutical) cases.

Contingency fees are, with some limitations, allowed, but it is rare in practice for such fee structures to be agreed upon.

What avenues of appeal are available following an adverse decision in a patent infringement lawsuit? Is new evidence allowed at the appellate stage?

The Danish legal system is based on the ‘two instance principle’, which means that either party generally has the option of appealing the decision of one court to a higher instance.

A first instance judgment from the Maritime and Commercial High Court can be appealed to the High Courts of Eastern or Western Denmark or, under very special circumstances, the Supreme Court.

All aspects of the first instance judgment may be part of the appeal (eg, questions or issues regarding matters of law and evidence).

New evidence is allowed at the appellate stage and must generally be submitted in the notice of appeal or respondent’s notice.

To what extent can enforcement of a patent expose the patent owner to liability for a competition violation, unfair competition or a business-related tort?

The patent owner’s refusal to grant a licence or inappropriate enforcement activities to protect the patent may, in exceptional circumstances, constitute an abuse of dominance in violation of competition law.

To what extent are alternative dispute resolution techniques available to resolve patent disputes?

Parties involved in a patent dispute can – as an alternative to litigation in court – settle the case by arbitration or mediation. The Danish courts offer court-based mediation, but there is no specialised arbitration system for patent disputes in Denmark.

Scope and ownership of patents

Can a patent be obtained to cover any type of invention, including software, business methods and medical procedures?

Generally, any invention involving a technical feature can be patented (if it is also new and inventive). However, some subject matters and activities are not regarded as inventions and are therefore not patentable.

Software is covered by the exception in the Patent Act, section 1(2)(3), and cannot be patented. Nonetheless, software in the form of a procedure practised through a data network might be patentable. Business methods are covered by the exception in the Patent Act, section 1(2)(1), and cannot be patented. Methods for treatment of the human or animal body by surgery, therapy or diagnostic methods are excluded from patentability by the Patent Act, section 1(3). The exception does not cover products for use in relation to the performance of such methods.

Who owns the patent on an invention made by a company employee, an independent contractor, multiple inventors or a joint venture? How is patent ownership officially recorded and transferred?

Under statutory law, an employer can require the transfer of rights in inventions made by company employees while the employee is in that case entitled to reasonable remuneration.

Ownership of inventions made by independent contractors remains with the independent contractor unless otherwise agreed between the parties.

If an invention has multiple inventors, it is jointly owned, which means that the inventors must generally agree on all dispositions regarding the patented invention. Assistance with creating the invention is not sufficient to create inventorship. It requires an intellectual contribution.

Ownership is recorded by the Danish Patent and Trademark Office in the Danish patent register. Both the inventor and owner of the invention must be mentioned by name in the patent application. Ownership can be transferred by agreement or assignment, and the transfer should be recorded in the Danish patent register.

Defences

How and on what grounds can the validity of a patent be challenged? Is there a special court or administrative tribunal in which to do this?

According to section 21 of the Patent Act, anyone can file an opposition against a granted patent. The opposition must be filed with the Patent and Trademark Office. The final decision by the Patent and Trademark Office can be appealed to the Board of Appeals for Patents and Trademarks.

The opposition must describe the grounds on which the challenge is based and must be submitted to the Patent and Trademark Office within nine months of publication of the grant of the patent. A prescribed fee must be paid to submit an opposition.

An opposition may solely be based on the grounds that:

• the requirements of sections 1 and 2 of the Patent Act are not complied with (lack of novelty or inventive step are the most common grounds for opposition);
• it relates to an invention that is not disclosed in a manner sufficiently clear to enable a person skilled in the art to carry out the invention on the basis of the description; or
• its subject matter extends beyond the contents of the application as filed. 

The Patent and Trademark Office will give notice upon the filing of an opposition. 

A patent’s validity may also be challenged in court, either as an independent validity case or as part of an infringement case.

Is there an ‘absolute novelty’ requirement for patentability, and if so, are there any exceptions?

Yes, there is an absolute novelty requirement for patentability. There are two exceptions:

• evident abuse within six months of the filing date; and
• display of the invention at an officially recognised international exhibition within six months prior to the filing date.

What is the legal standard for determining whether a patent is ‘obvious’ or ‘inventive’ in view of the prior art?

An invention is considered as involving an inventive step if, with regard to the state of the art, it is not obvious to a person skilled in the art. As Denmark is a contracting party to the European Patent Convention, the Danish courts follow the standards of the European Patent Office.

The ‘problem–solution approach’ is generally applied in the Danish courts and the Danish Patent and Trademark Office. With the problem–solution approach, you start by determining the ‘closest prior art’, establishing the ‘objective technical problem’ to be solved, and considering whether or not the claimed invention, starting from the closest prior art and the objective technical problem, would have been obvious to the skilled person. An invention will be considered ‘obvious’ if it follows plainly or logically from the prior art. However, the courts do not adhere strictly to the problem–solution approach in their reasonings.

Are there any grounds on which an otherwise valid patent can be deemed unenforceable owing to misconduct by the inventors or the patent owner, or for some other reason?

There is no provision as such in the Patent Act concerning grounds on which an otherwise valid patent can be deemed unenforceable owing to misconduct by the inventor or patent owner, and there is no case law disclosing circumstances in which that might be the case.

Is it a defence if an accused infringer has been privately using the accused method or device prior to the filing date or publication date of the patent? If so, does the defence cover all types of inventions? Is the defence limited to commercial uses?

Yes, the Danish Patent Act grants prior user rights to anyone who has been using the invention or has made significant preparations to use the invention, in Denmark, prior to the filing date of the patent. The prior user right can be claimed as a valid defence.

The prior user right covers all types of inventions. However, a prior user can only claim the defence for commercial use. If the use is non-commercial in its nature, it does not constitute a prior use defence. Non-commercial (private) use cannot constitute infringement in the first place.

A valid prior use defence enables a (prior) user to legally continue using the invention commercially. The use must keep its original character (and not change, for example, from manufacturing to import). The prior user right is personal and cannot be licensed. It can only be transferred together with the legal entity where it has been used.

Remedies

What monetary remedies are available against a patent infringer? When do damages start to accrue? Do damage awards tend to be nominal, provide fair compensation or be punitive in nature? How are royalties calculated?

Any infringer who intentionally or negligently commits a patent infringement must pay reasonable compensation to the patent owner for the exploitation of the invention and damages for the further injury that the infringement has caused. Additional compensation may be fixed to the patent owner for non-financial injury. Reasonable compensation is assessed by reference to what the infringed party could have obtained on the market. It is thus the infringed party that bears the burden of proof in this regard.

For non-intentional and non-negligent infringements, the infringer must pay compensation only for the use of the invention if, and to the extent that, this is considered reasonable.

Damages start to accrue when an infringement of a patent in effect occurs. In addition, the Danish Patent Act provides a legal basis for damages to accrue in the intermediate time before the issue of the patent but after the disclosure of the documents in the patent application.

Denmark has no provisions regarding punitive damages. Consequently, the Danish courts grant damages for infringements relatively conservatively.

To what extent is it possible to obtain a temporary injunction or a final injunction against future infringement? Is an injunction effective against the infringer’s suppliers or customers?

Both preliminary injunctions and permanent injunctions may be obtained under Danish law.

The swiftest way to enforce a patent right against a potential infringer is by submitting a request for a preliminary injunction. Preliminary injunctions can be obtained before or during main proceedings. The fundamental requirements for the grant of a preliminary injunction are that the patent owner must prove or show that it is probable that:

• it has a valid patent and that the patent is being infringed;
• the infringer’s behaviour makes it necessary to grant a preliminary injunction; and
• the possibility to enforce its patent will be lost if it must wait for the court’s decision under ordinary court proceedings.

The criterion that the ‘infringer’s behaviour makes it necessary to grant a preliminary injunction’ requires that the patent owner should be able to specify circumstances proving or making it probable that an infringement either has taken place or is imminent.

Preliminary injunctions are often granted on the condition that the patent owner provides security (typically a bank guarantee) to cover the estimated damages that the alleged infringer would suffer if the preliminary injunction were erroneously granted. However, the court will not demand security as a condition for the preliminary injunction if the patent owner has proved (and not merely rendered it probable) the entire lawfulness of the preliminary injunction.

Once a preliminary injunction is granted, it must be followed up by main proceedings to confirm the preliminary injunction with a permanent injunction. If the plaintiff provides sufficient evidence to establish infringement, the court usually grants a permanent injunction. In this context, ‘permanent’ means for as long as the patent in question is in force.

By order of the court, it is possible to have products withdrawn from business-to-business channels (retailers, distributors, etc) but not from consumers.

To what extent is it possible to block the importation of infringing products into the country? Is there a specific tribunal or proceeding available to accomplish this?

Importation of infringing products is prohibited in the Patent Act. A patent owner can therefore block the importation of infringing products by filing a lawsuit with the Maritime and Commercial High Court. An action for a preliminary injunction will be the fastest way to stop the infringing acts of importation.

Further, a patent owner can request that the Customs Agency seizes imported products if there is a strong suspicion of a patent infringement. Under certain requirements, the Customs Agency can destroy the seized products. Otherwise, the products will be released. If the patent owner objects to release or if the owner of the imported products objects to seizure and destruction, an ordinary infringement procedure must be filed at the Maritime and Commercial High Court. During court proceedings, the products may be released if the owner provides security. If it later turns out that the products did not infringe the patent, the patent owner may incur liability.

Under what conditions can a successful litigant recover costs and attorneys’ fees?

As a general rule, the losing party must reimburse the winning party for legal fees and court fees. Other justifiable costs, such as costs for court-appointed experts, expert opinions and witness compensation, may be fully reimbursed by the losing party.

The amount awarded for attorneys’ fees is decided at the discretion of the court and has typically been lower than the actual costs spent on legal fees by the prevailing party. Prevailing parties will also be entitled to reimbursement of patent attorneys’ expert testimony costs.

Are additional remedies available against a deliberate or wilful infringer? If so, what is the test or standard to determine whether the infringement is deliberate? Are opinions of counsel used as a defence to a charge of wilful infringement?

Danish law provides for fining and imprisonment for wilful patent infringement, but these provisions are rarely used.

To invoke the relevant provisions, the infringement as well as the existence and validity of the patent must be evident. In addition, there must be some aggravating circumstances such as an obvious infringement for profit purposes. Elements such as the number of infringing products, the product category, the value of the original product and the duration of the infringement will influence the determination of whether aggravating circumstances are present.

What is the time limit for seeking a remedy for patent infringement?

Remedies for patent infringement are subject to the statute of limitations under which they generally become statute-barred three years from the occurrence of the infringement or from the point in time where the patent owner became or should have become acquainted with the infringement. Notwithstanding the foregoing, claims for patent infringement become statute-barred at the latest 10 years after cessation of the infringement in question.

In addition to the statute of limitations, general patent law principles provide that an infringement action must be brought within a reasonable time. In patent matters, however, the inactivity must be considerable for the patent owner to forfeit the patent rights. It is not enough for the patent owner to give notice of an intent to take legal action if the patent owner remains inactive for a considerable time.

Must a patent holder mark its patented products? If so, how must the marking be made? What are the consequences of failure to mark? What are the consequences of false patent marking?

A patent owner is not required by law to mark patented products.

Though it is not a requirement, some patent owners mark their products to notify others of the existence of a patent right or a ‘patent pending’. Patent owners who decide to do so must provide information on the status of the patent upon request.

Licensing

Are there any restrictions on the contractual terms by which a patent owner may license a patent?

The patent owner may grant permission to another party to commercially exploit the patent, such as making, using, selling or marketing the patented invention. If the patent owner has granted another person the right to commercially exploit the patent, the licensee may not transfer that right to others in the absence of an agreement to the contrary.

Other than that, the Patent Act does not impose any restrictions on the terms of licence agreements. However, the drafter of a licensing agreement must – besides issues in relation to patent law – also consider the laws relating to contracts and torts, international private law and competition law. In addition, one should note the Commission Regulation (EC) No. 772/2004 of 27 April 2004 on the application of article 81(3) of the Treaty to categories of technology transfer agreements, which regulates patent licence agreements, know-how licensing agreements, software copyright licensing agreements or any mix of these agreements.

Are any mechanisms available to obtain a compulsory licence to a patent? How are the terms of such a licence determined?

Yes, the Patent Act provides for the possibility of compulsory licences under certain circumstances.

A compulsory licence can be granted by the Maritime and Commercial High Court if an invention has not been used commercially within three years of the grant of the patent and four years from the filing of the patent application. In exceptional cases, the Maritime and Commercial High Court can grant a compulsory licence based on a general public need for practising the invention.

The applicant for a compulsory licence must be capable of practising the invention with due care and must have unsuccessfully sought to obtain a voluntary licence on reasonable terms with the patent owner.

The terms of a compulsory licence are decided by the Maritime and Commercial High Court. 

Patent office proceedings

How long does it typically take, and how much does it typically cost, to obtain a patent?

The processing times and costs connected with filing a patent application depend on the technical nature of the invention. The first action (namely, the initial examination by the patent examiner on novelty, patentability and non-patentable claims) from the Patent and Trademark Office is usually issued within six months of filing the application. It is possible to request expedited processing, and in such cases the first technical action will be issued within three months. The costs connected with a patent application start at 3,000 Danish kroner for 10 claims, which cover filing, search and examination. Additional claims cost 300 kroner per claim.

However, the majority of patents granted with effect in Denmark are European patents. To take effect in Denmark, a European patent must be validated in Denmark within three months of the date on which the patent was granted by the European Patent Office.

Are there any procedures to expedite patent prosecution?

The Danish Patent and Trademark Office participates in the Patent Prosecution Highway (PPH) programme. The PPH is an informal agreement between patent offices, which means that an applicant can request accelerated processing of a patent application at a patent office or later examination when a patent office of earlier examination has already found the corresponding patent claims to be patentable.

Currently, the Patent and Trademark Office participates in a global PPH programme and a bilateral PPH programme with the patent offices in several countries around the world. 

What must be disclosed or described about the invention in a patent application? Are there any particular guidelines that should be followed or pitfalls to avoid in deciding what to include in the application?

The disclosure requirements in the Patent Act are the same as for European patent applications. First, a patent application must contain a description. The description is an explanation of the invention. Drawings of the invention can be included. Second, the application must describe the claims, namely the description of the technical features necessary to achieve the desired effect. Third, the application must contain an abstract on what technical problem the invention solves and how the invention can be used. Moreover, the name of the inventor and owner must be stated.

Applicants should be aware that patent applications may be written in Danish, Norwegian, Swedish or English. However, if the application is not in Danish, the Patent and Trademark Office will require that the application later be translated completely or partially into Danish.

Further, if an applicant intends to design protect the invention, that application should be filed simultaneously with the patent application to prevent the patent application from blocking a later design protection (or vice versa).

The Danish Patent and Trademark Office has issued a step-by-step guide for patent applications, which can be found on its website (currently only available in Danish).

Must an inventor disclose prior art to the patent office examiner?

No. There are no rules in the Patent Act obliging an inventor to disclose prior art to the examiner at the Patent and Trademark Office.

May a patent applicant file one or more later applications to pursue additional claims to an invention disclosed in its earlier-filed application? If so, what are the applicable requirements or limitations?

An applicant is entitled to file a divisional patent application based on a pending patent application. The divisional patent application must concern an invention that is within the scope of the parent patent application as filed. Further, the patent application must subsequently be amended in order not to cover the technical features covered by the divisional patent.

Is it possible to appeal an adverse decision by the patent office in a court of law?

A final decision from the Patent and Trademark Office cannot be appealed in a court of law but can be appealed before the administrative appeal board, the Board of Appeal for Patents and Trademarks.

Appeals must be filed no later than two months after the date on which the Patents and Trademark Office notified the party concerned of its decision. The fee prescribed for an appeal must be paid within the same time limit. The appeal has suspensive effect.

Appeal decisions of the Board of Appeal for Patents and Trademarks can be brought before the Maritime and Commercial High Court no later than two months after the date on which the Board of Appeal for Patents and Trademarks notified the party (or parties) concerned of its decision.

Does the patent office provide any mechanism for opposing the grant of a patent?

Before grant of a patent, it is possible to file a third-party observation by submitting certain documents to the patent examiner. Third-party observations may concern all parts of patentability of the patent application in question.

Does the patent office provide any mechanism for resolving priority disputes between different applicants for the same invention? What factors determine who has priority?

The patent priority rules are based on a first-to-file principle, which means that the first applicant to file an application with the Patent and Trademark Office achieves priority over later applications.

If two applicants file patent applications on the same invention on the same day, both applicants can be granted a patent on the invention. The Patent Act does not provide for how to deal with such an unlikely situation.

If the applicant who is first to file is not entitled to the invention (eg, because it is stolen), the first-to-file principle does not apply. If another party claims ownership of the invention, the Danish Patent and Trademark Office may urge the parties to file a lawsuit to settle the ownership dispute. While the case is being decided by the court, the patent application can be suspended until the court has ruled on the matter.

Does the patent office provide procedures for modifying, re-examining or revoking a patent? May a court amend the patent claims during a lawsuit?

Before a decision has been issued by the Patent and Trademark Office, the applicant can modify the patent application. During the course of examination, the applicant can submit modifications to respond to any objections from the examiner. The scope of a patent application cannot be extended through modification.

Any person is entitled to file a request with the Patent and Trademark Office to the effect that a patent granted by the Patent and Trademark Office or granted with effect for Denmark be re-examined. Such a request for re-examination by persons other than the patent owner may, however, only be based on the grounds for revocation.

An opposition must be received by the Patent and Trademark Office within nine months of the notice of the grant of the patent. A request for re-examination may not be filed during the period allowed for opposition, or as long as an opposition remains to be finally decided upon. If a case before the court concerning a patent remains to be finally decided upon, a request for re-examination may not be filed concerning the patent in question.

The court may amend patent claims during a lawsuit.

How is the duration of patent protection determined?

The duration of a patent is 20 years from the filing date. If priority is claimed, the patent term can be up to 21 years from the priority date. Maintenance of the patent is subject to the payment of annual fees.

A supplementary protection certificate (SPC) may be granted for patents on approved medicinal products and plant protection products that are subject to regulatory approval. An SPC will extend the term of the protection by five years maximum.

Additionally, if paediatric studies are completed, a six-month extension of the SPC can be obtained.

Update and trends

What are the most significant developing or emerging trends in the country’s patent law?

In a recent Eastern High Court ruling (handed down on 6 October 2022) in the Fingolimod cases (Novartis v Glenmark, Zentiva and Viatris), the High Court held that a patent application cannot form the basis for an application for a preliminary injunction.