Denmark: Patents Comparative Guide

1 Legal framework

1.1 What are the sources of patent law in your jurisdiction?

The main source of patent law in Denmark is the Danish Patents Act, No 221 of 26 February 2017 (as amended from time to time).

1.2 Who can register a patent?

Anyone that has made an invention which is susceptible to industrial application, or its successor in title, has the right to apply to register a patent for the invention and thereby obtain an exclusive right to exploit the invention commercially.

2 Rights

2.1 What rights are obtained when a patent is registered?

The exclusive rights conferred by a patent mean that no one except the patent holder may exploit the invention without 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.

The exclusive rights also entail that no one except the patent holder may exploit the invention without permission by supplying or offering to supply anyone that is not entitled to exploit the invention with the means for working it in Denmark, if those means relate to an essential element of the invention and the person supplying or offering to supply the means knows, or if it is obvious in the circumstances, that they are suitable and intended for such use.

2.2 How can a patent owner enforce its rights?

The civil procedure for claims for patent infringement, patent invalidation and declaratory actions is regulated by the general procedural rules in the Danish Administration of Justice Act, together with certain provisions of the Danish Patents Act.

Proceedings for such claims are brought at the Maritime and Commercial High Court, which serves as the first-instance patent court in Denmark. Judgments of the Maritime and Commercial High Court can be appealed to either the High Court of Eastern or Western Denmark or, in extraordinary circumstances, the Supreme Court.

The fastest way to enforce a patent against a possible infringer is by submitting a request for a preliminary injunction. Preliminary injunctions are the patent holder's primary remedy, as they constitute a swift and effective way of stopping infringing acts. A preliminary injunction must be followed up by main proceedings in order to confirm the lawfulness of the preliminary injunction, thereby making the injunction permanent.

In patent infringement cases, the patent holder may claim reasonable compensation for exploitation of the invention and damages for any further injury which the infringement has caused. The patent holder may also seek to have infringing products withdrawn from the market, removed definitively from the market, destroyed, surrendered to it or altered in a specified manner.

2.3 For how long are patents enforceable?

Patents are enforceable for 20 years from the date of filing of the patent application. 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.

3 Obtaining a patent

3.1 Which governing body controls the registration procedure?

The Danish Patent and Trademark Office controls the registration procedure.

3.2 What is the cost of registration?

The cost for registering a patent depends on the technical nature of the invention. The costs start with a basic fee of DKK3,000 for up to 10 patent claims, which covers filing, search and examination; additional claims cost DKK300 per claim.

However, most 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 it was granted in Europe by the European Patent Office. The costs of converting a European patent application into a Danish patent application also start with a basic fee of DKK3,000 for up to 10 claims; additional claims cost DKK 300 per claim.

3.3 What are the grounds to reject a patent application?

If the application does not comply with the formal requirements or the patentability requirements (ie, lack of industrial application, lack of novelty and/or lack of inventive step), the Danish Patent and Trademark Office will notify the applicant accordingly and invite it to file its observations or correct the application within a specified timeframe.

The Danish Patent and Trademark Office may reject the application based on these deficiencies as long as the applicant has been given the opportunity to present its views in this regard.

3.4 What programmes or initiatives are available to accelerate or fast track examination of patent applications?

The Danish Patent and Trademark Office is currently participating in a global Patent Prosecution Highway (PPH) programme, a bilateral PPH programme with the Chinese patent office and a pilot PPH programme with the Brazilian patent office.

The offices currently participating in the global PPH programme are Australia, Austria, Canada, Denmark, Estonia, Finland, Germany, Hungary, Iceland, New Zealand, Japan, Korea, Nordic Patent Institute, Norway, Poland, Portugal, Russia, Singapore, Spain, Colombia, Sweden, United Kingdom, United States and Visegrad Patent Institute.

A PPH is an informal agreement between patent offices which means that an applicant can request accelerated processing of a patent application at a participating patent office if another participating patent office has already found the corresponding patent claims to be patentable.

3.5 Are there any types of claims or claiming formats that are not permissible in your jurisdiction (eg, medical method claims)?

The following subject matter and activities are not regarded as inventions and are therefore not patentable:

• discoveries, scientific theories and mathematical methods;
• aesthetic creations;
• schemes, rules or methods for performing mental acts, playing games or doing business, and computer programs; and
• presentations of information.

Furthermore, the following subject matter is not patentable:

• methods for the treatment of humans or animals by surgery or therapy, and diagnostic methods practised to this end;
• plant or animal varieties;
• essential biological processes for the production of plants or animals;
• the human body at its various stages of formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene; and
• inventions whose commercial exploitation would be contrary to public order or morality, including:
• • processes for cloning human beings;
  • processes for modifying the germ line genetic identity of human beings;
  • industrial or commercial uses of human embryos; and
  • processes for modifying the genetic identity of animals that are likely to cause suffering without any substantial medical benefit to man or animal, and animals resulting from such processes.

  3.6 Are any procedural or legal mechanisms available to extend patent term (eg, adjustments for patent office delays, pharmaceutical patent term extension or supplementary protection certificates)?

  The patent term is definitively fixed. However, in the case of specific products, it is possible to obtain extended protection on the basis of a granted patent pursuant to the provisions on supplementary protection certificates.

  The provisions on supplementary protection certificates do not extend the patent term as such, but rather extend the period of protection of the product.

  For pharmaceutical and plant patents, the protection period may be extended through a supplementary protection certificate for an additional period of up to five years.

  3.7 What subject matter is patent eligible?

  The Danish Patents Act does not set out positive guidance on what constitutes patent-eligible subject matter. However, it does set out a non-exhaustive list of what is not patent-eligible subject matter (see question 3.5).

  3.8 If the patent office does not grant a patent, is an appeal available and to whom?

  Applicants may appeal a final decision of the Danish Patent and Trademark Office concerning a patent application before the Board of Appeal for Patents and Trademarks. The appeal must be filed within two months of the date on which the Danish Patent and Trademark Office notified the applicant of its decision. A fee of DKK8,000 is payable within the same timeframe; failure to pay this fee will result in the rejection of the appeal.

  4 Validity/post-grant review and/or opposition procedures

  4.1 Where can the validity of an issued patent be challenged?

  The validity of a granted patent may be challenged in opposition proceedings before the Danish Patent and Trademark Office within nine months of publication of grant of the patent.

  The validity of a granted patent may further be challenged before a district court or the Maritime and Commercial High Court in invalidation proceedings or as a counterclaim by the defendant in infringement proceedings.

  4.2 How can the validity of an issued patent be challenged?

  Anyone can file an opposition with the Danish Patent and Trademark Office against a granted patent within nine months of publication of grant of the patent. The opposition must include the grounds for the challenge and the prescribed fee must also be paid.

  Invalidity proceedings and declaratory proceedings may further be instigated before a district court or the Maritime and Commercial High Court by any party. A defendant may also claim invalidity of a patent in infringement proceedings.

  4.3 What are the grounds to invalidate an issued patent?

  A granted patent may be invalidated on the following grounds:

  • The patent was granted even though it did not meet the patentability requirements set out in the Danish Patents Act (ie, lack of industrial application, lack of novelty and/or lack of inventive step);
  • The patent relates to an invention which has not been 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 (ie, insufficient disclosure);
  • The subject matter of the patent extends beyond the contents of the application as filed; or
  • The scope of the protection conferred by the patent has been extended since the Danish Patent and Trademark Office notified the applicant of grant.

  4.4 What is the evidentiary standard to invalidate an issued patent?

  According to the general principles of Danish law, the courts can consider evidence on its merits. There are no formal rules on evidentiary standards and the courts may therefore decide what emphasis to place on evidence produced by the parties.

  In invalidity proceedings, the burden of proof rests with the party which is seeking invalidation of the patent. This party must provide conclusive evidence that the patent should be invalidated; a mere probability or presumption of invalidity is usually insufficient to meet the burden of proof.

  4.5 What post-grant review or opposition procedures are available for third parties to challenge the validity of a patent?

  Any party is entitled to file an opposition with the Danish Patent and Trademark Office against a granted patent. Any party is also entitled to request the Danish Patent and Trademark Office to re-examine a patent granted by the Danish Patent and Trademark Office (or granted with effect for Denmark), based on the grounds for revocation.

  4.6 Who can oppose a granted patent?

  Any party is entitled to file an opposition with the Danish Patent and Trademark Office. Court proceedings on the grounds that a patent is invalid may also be brought by any party.

  4.7 What are the timing requirements for filing an opposition or post-grant review petition?

  An opposition must be filed with the Danish Patent and Trademark Office within nine months of publication of grant of the patent.

  A request for re-examination may not be filed during the opposition period or while an opposition is pending; or while court proceedings concerning the patent are pending.

  4.8 What are the grounds to file an opposition?

  An opposition may be filed only on the following grounds:

  • The patent was granted even though it did not meet the patentability requirements set out in the Danish Patents Act (ie, lack of industrial application, lack of novelty and/or lack or inventive step);
  • The patent relates to an invention which has not been 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 (ie, insufficient disclosure); or
  • The subject matter of the patent extends beyond the contents of the application as filed.

  4.9 What are the possible outcomes when an opposition is filed?

  The Danish Patent and Trademark Office may revoke a patent or maintain it unamended or in amended form.

  If the Danish Patent and Trademark Office finds that the patent may be maintained in amended form and the patent holder agrees to this, the patent specification will be amended accordingly once the patent holder has paid the prescribed fee for publication thereof.

  If the patent holder does not agree to the amended form or does not pay the fee for publication of a new patent specification in due time, the patent will be revoked.

  4.10 What legal standards will the tribunal apply to resolve the opposition or challenge, and which party bears the burden of proof?

  According to the general principles of Danish law, the tribunal can consider evidence on its merits. There no formal rules on evidentiary standards and the tribunal can therefore decide what emphasis to place on evidence produced by the parties.

  In opposition proceedings, the burden of proof rests with the party which is seeking invalidation of the patent. This party must provide conclusive evidence that the patent should be invalidated; a mere probability or presumption of invalidity is usually insufficient to meet the burden of proof.

  4.11 Can a post-grant review decision be appealed and what are the grounds to appeal?

  Decisions of the Danish Patent and Trademark Office may be appealed before the Board of Appeal for Patents and Trademarks by the patent holder or a party which has requested administrative re-examination within two months of notification of the decision. Other parties with an interest in the decision may similarly appeal within two months of publication of the decision.

  5 Patent enforceability

  5.1 What makes a patent unenforceable?

  Danish patent law does not specify the grounds on which an otherwise valid patent can be deemed unenforceable. However, fraud or similar misconduct on the part of the patent holder may lead to invalidity, opposition or administrative re-examination proceedings.

  5.2 What are the inequitable conduct standards?

  There are no provisions on inequitable conduct in Danish patent law.

  5.3 What duty of candour is required of the patent office?

  There is no duty of candor under Danish patent law.

  6 Patent infringement

  6.1 What Constitutes Patent Infringement?

  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.

  6.2 Does your jurisdiction apply the doctrine of equivalents?

  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.

  6.3 Can a party be liable if the patent infringement takes place outside the jurisdiction?

  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.

  6.4 What are the standards for wilful infringement?

  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.

  6.5 Which parties can bring an infringement action?

  In case of infringement, proceedings must be brought by the injured party (ie, the patent holder).

  6.6 How soon after learning of infringing activity must an infringement action be brought?

  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.

  6.7 What are the pleading standards to initiate a suit?

  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.

  6.8 In which venues may a patent infringement action be brought?

  Patent infringement proceedings can be brought before a district court or the Maritime and Commercial High Court.

  6.9 What are the jurisdictional requirements for each venue?

  There are no specific jurisdictional requirements for each venue.

  6.10 Who is the fact finder in an infringement action?

  A fact finder is not designated in Danish patent infringement proceedings.

  6.11 Does the fact finder change based on venue?

  A fact finder is not designated in Danish patent infringement proceedings.

  6.12 What are the steps leading up to a trial?

  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.

  6.13 What remedies are available for patent infringement?

  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.

  6.14 Is an appeal available and what are the grounds to appeal?

  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.

  7 Discovery

  7.1 Is discovery available during litigation?

  Under certain circumstances, the Danish courts may order a sort of discovery confined to specific evidence.

  7.2 What kinds of discovery are available?

  A party may request the Danish courts to order an opposing party or a third party to disclose specific documents which are at that other party's disposal. The request for disclosure must be specific and must concern documents of relevance to the matter. The request must further contain information on the facts to which the requested documents relate and the reasons for the request.

  7.3 Are there any limitations to the amount of discovery allowed?

  See question 7.2.

  8 Claim construction

  8.1 When during a patent infringement action are claim terms defined by the tribunal?

  The claim terms are defined by the court in its decision in the patent infringement action.

  8.2 What is the legal standard used to define claim terms?

  The extent of the protection conferred by a patent must be determined by the claim terms. In interpreting the claim terms, the patent description may serve as a guideline.

  8.3 What evidence does the tribunal consider in defining claim terms?

  The tribunal will decide on the true meaning and scope of the claim terms in light of intrinsic evidence, such as the patent description, other claims in the patent and/or other relevant prior art, as a skilled person would understand them. The tribunal may also consider extrinsic evidence, such as the interpretation of a skilled person and technical publications.

  9 Remedies

  9.1 Are injunctions available?

  Yes. Both preliminary injunctions and permanent injunctions are available. Preliminary injunctions are available both before and during the main proceedings.

  9.2 What is the standard to obtain an injunction?

  To obtain a preliminary injunction, the patent holder must prove or render probable the following:

  • It has a valid patent which is being infringed,
  • The infringer's behaviour has made a preliminary injunction necessary – to this end, the patent holder must provide details of specific circumstances that prove or render it probable that an infringement either has taken place or is imminent; and
  • The possibility to enforce the patent will be lost if the patent holder has to wait for the court's decision in ordinary court proceedings.

  To obtain a preliminary injunction, the patent holder must also generally provide security (typically a bank guarantee) to cover damages that the alleged infringer might suffer if the preliminary injunction is later found to have been erroneously granted. However, the court will not demand security if the patent holder has in fact proved (and not just rendered probable) the lawfulness of the preliminary injunction.

  A preliminary injunction will not be granted if the court considers this would be a disproportionate legal remedy. This rule is rarely applied, and the preparatory works to the Danish Administration of Justice Act further stipulate that this rule must not be applied unless there is a significant discrepancy between the patent holder's interest in a preliminary injunction and the possible harmful consequences for the defendant.

  As for permanent injunctions, there are no specific rules for specific subject matter or claimants.

  9.3 Are damages available?

  Yes, damages are available.

  9.4 What types of damages are available?

  In case of a finding of intentional or negligent infringement, damages are available to the patent holder. The patent holder is entitled to reasonable compensation for exploitation of the invention and damages for any further injury which the infringement has caused. Additional compensation may be awarded to the patent holder for non-financial injury.

  9.5 What is the standard to obtain certain types of injunctions?

  See question 9.2.

  9.6 Is it possible to increase or multiply damages due to a party's actions?

  No.

  9.7 Are sanctions available?

  Yes.

  9.8 What kinds of sanctions are available?

  To prevent further infringement, the court may order that infringing products be withdrawn or removed from the market, destroyed, surrendered to the patent holder or altered in a specified manner. In addition, the court may order that its decision be published in full or in part.

  9.9 Can a party obtain attorneys' fees?

  Yes, a party can obtain attorneys' fees and court fees.

  9.10 What is the standard to obtain attorneys' fees?

  As a general rule, the losing party must reimburse the winning party for attorneys' fees and court fees. However, the amount of attorneys' fees awarded is at the court's sole discretion. These discretionary amounts are generally significantly lower than the actual legal fees of the winning party.

  Other justifiable costs, such as the costs of court-appointed experts, expert opinions and witness compensation, may be fully reimbursed by the losing party.

  10 Licensing

  10.1 What patent rights can a party obtain through a licence?

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

  10.2 What limits can a patent owner impose on a licence?

  The patent holder may impose limits on a licence agreement which restrict the extent of the licence, the territory to which it applies, the term of the licence and so on.

  The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.