Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
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Results: 4 Answers
Patents
6.
Patent infringement
6.1
What Constitutes Patent Infringement?
 
Denmark
A party infringes a patent if it exploits the invention commercially, without the patent holder’s permission by:

  • making, offering, putting on the market or using a product which is the subject matter of the patent, or importing or stocking the product for such purposes;
  • using a process which is the subject matter of the patent, or offering the process for use in Denmark, if the party using or offering the process knows or if it is obvious in the circumstances that the process may not be used without the consent of the patent holder; or
  • offering, putting on the market or using a product obtained by a process which is the subject matter of the patent, or importing or stocking the product for such purposes.
For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.2
Does your jurisdiction apply the doctrine of equivalents?
 
Denmark
The extent of protection conferred by a patent is determined by the claims. In interpreting the claims, the description may serve as a guide.

However, Supreme Court case law has confirmed that the doctrine of equivalents applies in Denmark. This means that a party can be held liable for patent infringement even if the infringing device, process or similar does not fall within the literal scope of the claims, as long as it is equivalent to the claimed invention.

This doctrine was most recently applied in December 2017 in a preliminary injunction action before the Maritime and Commercial High Court concerning a medicinal product for cancer treatment.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.3
Can a party be liable if the patent infringement takes place outside the jurisdiction?
 
Denmark
Principally, a party can be liable only if the patent infringement has taken place inside Denmark. However, foreign activities that have an effect in Denmark may also constitute patent infringement in Denmark.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.4
What are the standards for wilful infringement?
 
Denmark
Under Danish patent law, the infringer must have had knowledge of:

  • the existence of the patent;
  • the fact that the patent is owned by a third party;
  • the fact that the patent holder has not authorised its exploitation of the patent; and
  • the fact that its actions fall under the scope of the patent protection.
For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.5
Which parties can bring an infringement action?
 
Denmark
In case of infringement, proceedings must be brought by the injured party (ie, the patent holder).

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.6
How soon after learning of infringing activity must an infringement action be brought?
 
Denmark
Under Danish patent law, an infringement action must be brought within a reasonable time. In patent matters, however, must be very considerable in order for the patent holder to forfeit its patent rights.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.7
What are the pleading standards to initiate a suit?
 
Denmark
When filing suit, the pleading must contain the following:

  • the names and the addresses of the parties;
  • the venue;
  • the plaintiff's claims, the amount of the claims and a short description of the facts of the case;
  • a detailed account of matters of fact and of law in support of the claims;
  • a statement of documents and other evidence on which the plaintiff intends to rely; and
  • the plaintiff's suggestions as to how the suit should be handled.
For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.8
In which venues may a patent infringement action be brought?
 
Denmark
Patent infringement proceedings can be brought before a district court or the Maritime and Commercial High Court.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.9
What are the jurisdictional requirements for each venue?
 
Denmark
There are no specific jurisdictional requirements for each venue.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.10
Who is the fact finder in an infringement action?
 
Denmark
A fact finder is not designated in Danish patent infringement proceedings.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.11
Does the fact finder change based on venue?
 
Denmark
A fact finder is not designated in Danish patent infringement proceedings.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.12
What are the steps leading up to a trial?
 
Denmark
The plaintiff commences court proceedings by filing a writ of summons with the relevant court of law. The defendant is given a timeframe in which to submit its statement of defence (this usually starts at two weeks, but is often extended to four weeks). The parties then participate in a preparatory court meeting (which is often conducted via telephone) to align on the handling of the case leading up to trial.

In patent proceedings court-appointed experts commonly provide statements regarding infringement issues. Following submission of these expert statements, the parties can – and normally do – exchange further pleadings with the court.

Depending on the complexity of the matter, the oral hearing usually takes place within 18 to 36 months of the date on which the writ of summons was filed in ordinary patent infringement proceedings and within six to 12 months in preliminary injunction proceedings.

The probative value of evidence is assessed by the courts under the general principles of free evaluation of evidence. The plaintiff must provide evidence to substantiate its claims (eg, regarding patent infringement). If the court finds that there are grounds to believe that evidence is likely to be destroyed, a procedure to secure such is available on request. Technical evidence may be produced by submitting technical literature. However, actual technical evidence must be produced by way of statements from court-appointed experts.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.13
What remedies are available for patent infringement?
 
Denmark
Preliminary and permanent injunctions are available in patent litigation. A party that requests either a preliminary or a permanent injunction will usually be awarded this by the court following a finding of patent infringement. Preliminary and permanent injunctions may be obtained against actual or imminent infringing acts. Preliminary and permanent injunctions may also be directed at specific items.

Monetary remedies for patent infringement are also available. A party which intentionally or negligently commits patent infringement must pay reasonable compensation to the patent holder for exploitation of the invention and damages for further injury which the infringement has caused. Additional compensation may be awarded to the patent holder for non-financial injury.

In order to prevent further infringements, the court may also order that an infringing product be withdrawn or removed from the market, destroyed, surrendered to the patent holder or altered in a specified manner.

The court may further order that its decision be published in full or in part.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab
6.14
Is an appeal available and what are the grounds to appeal?
 
Denmark
Under the Danish legal system, either party generally has the option of appealing a first-instance decision to a court of higher instance.

A first-instance decision of the Maritime and Commercial High Court may thus be appealed to the High Court of Eastern or Western Denmark or, under extraordinary circumstances, the Supreme Court.

All aspects of the first-instance decision may be reviewed on appeal (ie, matters of law and of fact).

Appeal proceedings before the High Court of Eastern or Western Denmark usually take nine to 18 months.

For more information about this answer please contact: Morten Bruus from Accura Advokatpartnerselskab