Finland

Certain features and trends in IP Practice in Finland

The main forms of IP Protection in Finland are on a par with developments within the European Union, of which Finland became a member in 1995

There are specific acts ruling on patents, utility models, trademarks and copyrights. Finland is a party to the following conventions: WTO, EPC and PCT. As a member of the EU, Finland must adhere to EU IP legislation, and the national laws have been harmonised to adhere to such legislation. With regard to IP litigation, and especially patent litigation, the key figures of court proceedings do not differ very much from those that are applied in Sweden, Denmark and Norway.

With regard to infringement, it is stipulated in the Patent Act that anyone who commits patent infringement deliberately or through negligence shall pay reasonable damages for the use of the patented invention and compensation for additional damages, which such infringement might have caused. Should someone commit patent infringement which is neither deliberate nor due to negligence, compensation shall be awarded to a patentee for such use, as is deemed reasonable. An action for compensation for patent infringement may only cover damages for the previous five years before infringement action was brought.

During the last few years interlocutory and final injunctions have been broadly used by especially pharmaceutical corporations in infringement cases with regard to pharmaceutical patents. The reason for this is the fact that up to 1995 only methods patents were granted for new medical molecules instead of a product patent. The first original drugs protected by product patents will commercially be introduced in Finland this year. A majority of the drugs for sale on the Finnish market are, consequently, protected by methods patents only. A transition period will continue until 2014, when the range of drugs will be covered by European patent protection. As an outcome of this, parallel drugs have been launched on the Finnish market already before the expiration of the corresponding patent.

Generic manufacturers can develop new processes, whereby a method patent is circumvented. Mainly due to this fact it has been possible to introduce parallel drugs in Finland several years before the corresponding patents expire in other EU countries. Certain legislative steps in terms of limiting generic substitution (a system where original drugs are replaced by generic substitutions) have been taken in order to curb this development.

The proceedings commence with the filing of an application for summons. Thereafter, the court will ask the defendant for a statement of defence in writing, whereafter additional briefs may be filed by the parties, as instructed by the court. The proceedings will continue with the court calling the parties to a pre-trial or a preliminary hearing, where the judge presiding on the case chair the hearing with the intention to sort out and separate facts and arguments filed or referred to by the parties into those undisputed and those under dispute. Parties are also requested to file detailed lists of both written evidence and those persons who will be called to give depositions. After the closing of a pre-trial, the parties are not allowed to file new evidence or refer to new arguments, unless it can be proven that such evidence or arguments were not previously available or known.

Hereafter, the proceedings continue with a main hearing, which is predominantly oral. Any summoned witnesses have to submit to cross-examination. Once the witnesses have given their depositions, parties are to deliver their final remarks and the formal oral pleadings. Bearing in mind the predominantly written evidence used in patent litigations, such oral pleadings are often limited to referrals to documentation. There does not exist any discovery proceedings in Finland, similar to those under the US system. There is, however, a procedure where one party can ask the court to order the other party to produce and disclose certain documentation. However, the scope of such court orders is fairly limited, and requires that the requesting party is aware of such document and can specify the same. The other party can avoid such court order by referring to trade secret aspects.

The lack of any far developed discovery system also limits the procedural documentation, as the parties will not be forced to present practically all documentation relating to a dispute to the court. With regard to remedies for patent infringements, the legislation allows compensation and damages for financial losses. The person or corporation who intentionally or negligently infringes the patent, shall be liable to pay reasonable compensation for the exploitation of the patented invention, and, moreover, damages for other injury caused by the infringement. Compensation proceedings for patent infringement are limited by a specific stipulation in the Patent Act, according to which damages can be recovered only during the previous five years prior to the institution of legal proceedings. Any right to compensation for damages prior to such period shall be considered to be lapsed.

The District Court of Helsinki has sole jurisdiction in patent, utility model and trademarks litigation. In practice the court acts with three members, one presiding judge and two assistant judges, and two outside experts with technological qualifications. A decision by the district court may be appealed to the Appellate Court of Helsinki. Finally, there is a (rather theoretical) possibility to appeal to the Supreme Court, but such appeal is limited and the appealing party must file an application regarding a grant to appeal to the Supreme Court. The Supreme Court has been rather restrictive admitting to such grants.

As neither the Appellate Court nor the Supreme Court have any members with technological qualifications, it is, practically speaking, most important to have a favourable judgment in the district court. It is rather difficult to have a judgment overturned, where the merits of the case mainly deal with assessments of complex technical arguments. The key benefit of Finland as a patent, and also as an IP jurisdiction, would be the time aspect. Parallel proceedings in the other Nordic countries are, as a rule, always much slower, and as a rule of the thumb in most cases where there are parallel proceedings pending in various jurisdictions, a Finnish judgment will often be the first to be obtained, serving then as a precedent in the other parallel proceedings. The cost aspect can also be noted, as, at least from a general point, the level of legal fees in Finland is not on a level with corresponding costs in most other jurisdictions. Moreover, one aspect to be observed is the fact that the winning party will be awarded full compensation for its legal expenses, to be paid by the losing party.

However, the increasing common legislation of the European Union will bring the compensation practice more in line with the mainstream European practice. In this context Directive 204/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights is expected to have strong bearings on the unification of compensation issues. This, however, remains to be seen. This Directive will be implemented by 29 April 2006. Despite the fact that Finland is considered as one of the leading high-tech centres, mainly due to Nokia, Finland cannot offer any specific forms of IP protection for technology companies, that would be specific for this country. However, the accuracy of the Patent Office, together with a fairly rapid handling period, is a fact that can be underlined.

As a member of the European Union Finland has to implement the IP legislation of the European Union as such. The Finnish national IP legislation has been harmonised continuously. In IP litigations such references to EU legislation and practice are frequently made. There have been referrals to the Brussels Convention, and, when applicable, to TRIPS and especially to article 50 thereof. In the coming years, the Community Patent, if and when it is introduced, will apparently influence the national patent system.

Bearing in mind the fact that Finland is a rather small country with only slightly more than five million people, the number of members of the Finnish Bar Association is only presently 1,748. The number of specialist IP law firms in Finland is, consequently, rather limited. The larger law firms with full-house services have IP departments. The specialist IP law firms are small niche firms, with lawyers specialising in IP litigation primarily. The number of such specialist IP law firms is not more than 3-5, all operating in Helsinki.

As there is no legal obstacle against other than attorneys-atlaw representing clients in IP litigations, some patent agencies have also entered this field. In most cases, however, the parties are represented by a team of at least one patent attorney and one attorney-at-law.

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