Bevisbörda och beviskrav i mål om intrång i förfarandepatent

Sammanfattning: The general rule in patent infringement disputes is that the plaintiff must show that the defendant's actions include an infringement. In the case of infringement of method patents, a certain evidentiary problem arises. In these cases, it is common for defendant to claim that a seemingly imitated product was created with a procedure other than the patented one without being able or willing, with reference to the fact that it constitutes a trade secret, to explain the procedure used. The patent holder may find it difficult to obtain sufficient evidence proving that the defendant has used the patented method. At the same time, defendant has a legitimate interest in not disclosing its manufacturing process, as it may constitute a trade secret. The purpose of this thesis is to investigate the legal situation regarding this evidentiary issue. In the lower courts, an evidentiary alleviation rule has been developed. The rule means that the patent holder must make it probable that the defendant has used the patent-protected method. If the patent holder makes it probable that the defendant committed a patent infringement as above, it will be up to the defendant to make it probable that the patent-protected method has not been used. Due to the fact that the Supreme Court has not yet tried the current burden of proof issue, there is room to discuss and analyse the evidentiary alleviation rule created in the lower courts. A solution discussed in the essay is whether the burden of proof, based on the theory of securing evidence or the material theory, can and should be placed differently. It can be stated that there are evidentiary difficulties for both parties. Although it seems easier for the defendant to secure evidence of the procedure used, this does not necessarily mean that the burden of proof should be placed on him or her. The inventor's interest in financial compensation and society's interest in allowing other actors to compete with inventions does must be balanced, and this does not necessarily mean that the burden of proof should be relocated. Another solution discussed in the thesis is to reintroduce a presumption rule in the case of infringement in a method patent. However, it is clear that a presumption rule must be combined with a requirement for the patent holder to first make it probable that the product was manufactured by the patented procedure. The value of such a rule for patent holders is then lost. The final solution presented is the evidentiary alleviation rule applied by the lower courts. According to both the theory of securing evidence and the material theory the evidentiary requirement should be reduced in cases of infringement of method patents. The rule formed by the lower courts may, however, be more or less appropriate in individual cases with regard to whether there are greater or lesser evidentiary difficulties. A reasonable solution to the problem of evidence would be for the courts to allow the evidentiary requirement to vary due to the circumstances in each individual case. Hopefully, the Supreme Court will address the issue and determine whether any evidentiary alleviation rule should be applied in cases of infringement of a method patents, as well as the conditions under what such a rule should be applied.