Agreement gives the Swedish Migration Agency the right to use software without time limit

Agreement gives the Swedish Migration Agency the right to use software without time limit

The Swedish Migration Agency has a dispute with a company regarding the right to use software. The authority considers that it has paid for the right to use the program without a time limit, while the company believes that this is not the case. The Patent and Market Court finds that the company has not been sufficiently clear about its intention to only allow the use of the software for a certain period, which is why the Swedish Migration Agency is granted the right of use without a time limit.

The Swedish Migration Agency has an ongoing agreement with the company Speed regarding, among other things, various types of software.  The authority then continues to use one of the programmes after the contractual relationship, and thus also the monthly payments to Speed, have ended. According to the Authority, this is in accordance with the agreement of the parties as it considers that it has acquired a right to use the program without a time limit. However, Speed argues that the agreement only provides a right of use on the condition that the Migration Agency continues to pay on an ongoing basis. The company is therefore bringing an action in the Patent and Market Court (PMC) with a claim for compensation for the period during which the authority used the product without paying.

The court must therefore decide how far the authority’s right to use the programme extends in time. According to Speed, the agreement contains conflicting terms regarding the right to use the software, as there are two separate provisions with incompatible content that regulate the issue. One of the conditions can be found under the heading “Main Agreement” and stipulates that the Swedish Migration Agency obtains full ownership and disposal rights to all intellectual property rights that have been created or acquired on behalf of the Agency. According to Speed, the condition means that the Swedish Migration Agency only receives a right of use without a time limit to software that the company offers as a result of its cooperation with the authority. However, the programme to which the dispute relates is part of the company’s ordinary offering, which is why it considers that it is not covered. The condition that is contradictory to Speed is stated in the tender documents, where the Swedish Migration Agency has set up requirements regarding the right of use, which the company has been able to answer with either “Yes” or “No”. According to the condition, the Finnish Immigration Service is granted an unlimited right of use to the software covered by the agreement.

In addition, the agreement contains a letter determining the hierarchy of the various conditions in the event of inconsistency. According to the hierarchy, the terms of the main agreement take precedence, which Speed believes means that the provision that gives the Swedish Migration Agency a right of use without a time limit should take precedence.Instead, the Migration Board argues that one condition regulates the right of ownership and disposal, while the other applies to the right of use. Thus, according to the Authority, the provisions are not contradictory, but rather complement each other. The court looks at the terms and conditions of the agreement and notes that the wording clearly supports the authority’s interpretation. Furthermore, the Court does not agree with Speed’s assessment that it is implicit in the letter in the main agreement that the Migration Board is not granted a time-limited right to use software is part of the company’s ordinary offering. It must therefore be held that the provisions in question are complementary rather than contradictory.

Speed argues, however, that it supplemented its reply to the specifications with a free-text reply stating that it undertook to grant the authority full and indefinite rights of use of the intermediate goods to be supplied. According to Speed, that letter means that the Migration Board is granted such a right of use only to the middleware and that the program at issue does not fall within that category of software. The Court notes that the letter in question does not unequivocally state that the Migration Board is to be granted only a right of use without a time limit to intermediate goods. This, combined with the fact that Speed answered yes to the Migration Board’s demands in the tender documents, leads the court to the conclusion that the authority has acquired a right of use without a time limit to the disputed software as well. The Swedish Migration Agency thus has the right to continue to use the software even though the agreement with Speed has not been extended.