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“Happo78plus (Information Disclosures in Patent Litigations)”

Decision of the Supreme Court 6 February 2019 – Case No. KKO:2019:10 (ECLI:FI:KKO:2019:10)

  1. 1.

    As the order of a right of information can be dealt with separately from infringement proceedings, the precondition cannot be set to be that the infringement must be affirmed in a judgment. The applicant, however, must produce a well-founded request, whereby relying on reasonably available and sufficient evidence, demonstrating a probability that his intellectual property has been infringed.

  2. 2.

    The right of information must then be evaluated on the basis of whether the requested information is necessary for the applicant to be able to bring proceedings, set the claim for damages, and show the probable grounds of his application. Finally, the right of information must be evaluated on the basis of whether there is a conflict between the harm caused by assigning the information and the applicant’s benefit of receiving that information.

    1. a.

      According to Sec. 19 of Chapter 17 of the Finnish Code of Judicial Procedure, a person may refuse to testify regarding a commercial or professional secret, except for very important reasons which take the nature of the case, the significance of the evidence in respect of deciding the case, and the consequences of presenting it into consideration, as well as all other circumstances that require such testimony.

    2. b.

      In this regard the court may consider that the applicant who receives information has an obligation to maintain confidentiality and that in the execution of a precautionary measure for documents, the bailiff, by using an impartial expert if needed, separates the information ordered by the court from the other material, and copies or otherwise makes a record of the information. Linking the right of information to this type of limited material secures the interests of both the plaintiff and the opposing party. Therefore, the right of information can be ordered to be executed in a manner that the company’s agents or representatives can familiarise themselves with the material subject to the precautionary measure at the bailiff’s premises and to receive copies of the documentation for its own use. The applicant must immediately destroy the material it has received if it were to be shown that it is not necessary evidence for patent infringement proceedings.

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Translated by Roosa-Maria Raikko.

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Act on Securing Evidence in Civil Intellectual Property Matters, Secs. 2, 3, 7(a)(ja), 7(b); TRIPS Agreement, Art. 50 Sec. 1; Directive 2004/48/EC, Arts. 3, 7. “Happo78plus (Information Disclosures in Patent Litigations)”. IIC 50, 880–887 (2019).

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  • Information disclosures in patent litigation
  • Precautionary measure
  • Right to obtain information
  • Securing evidence
  • Trade secrets
  • Proportionality