NORWAY Law and Practice Contributed by: Vebjørn Krag Iversen, Nora Bratheim, Kristin Erstad Remvik and Guro S. K. Nybø, Wikborg Rein Advokatfirma AS
1.4 Structure of Main Proceedings on Infringement/Validity In Norway, revocation claims and infringement claims are dealt with in the same proceedings. 1.5 Timing for Main Proceedings on Infringement/Validity A typical timeline for a revocation and/or infringement action in Norway is as follows. • A writ is filed with the Oslo District Court, which is the mandatory venue for patent cases. • The defendant is normally granted a time limit of three weeks in which to file a defence to the writ. The time limit may be extended by another three to four weeks in complex cases. • A case management conference with the judge and counsel is held a few weeks after the defend ‑ ant has submitted the defence. Hearing dates, appointment of expert lay judges, etc, will be decided at this conference. • A main hearing, typically lasting four to ten con ‑ secutive court days, would normally take place between six and 12 months from commencement of proceedings. • A judgment from the Oslo District Court can be expected within four to ten weeks, depending on complexity. 1.6 Requirements to Bring Infringement Action Infringement actions are normally brought on the basis of a granted patent. In theory, an infringement action can be filed before the grant or validation of a patent, but there are very few examples of this in practice. 1.7 Pre-Action Discovery/Disclosure There is no pre-action discovery/disclosure as such in Norway. One may, however, initiate measures for securing of evidence prior to proceedings. This is relevant if the evidence is at risk of being lost otherwise. Additionally, securing of evidence prior to proceedings is possible if done in order to provide an opportunity to assess a claim and possibly reach an amicable settlement.
The securing of evidence – specifically, information related to patent infringement – can under certain conditions be obtained prior to an action for infringe ‑ ment. The securing of evidence does not necessar ‑ ily imply that the claimant may obtain access to the evidence, especially if the evidence is confidential. As mentioned earlier, the claimant must show that: • there is a clear risk that the evidence will be lost or considerably impaired otherwise; or • there are other reasons that make it particularly important to obtain access to the evidence before the lawsuit is instigated. A request for such evidence may also be made ex parte if there is reason to fear that notice to the oppo ‑ site party could lead to obstruction of the securing of evidence. If granted, the opposite party will be allowed an oral hearing. The petitioner shall, in that case, not be allowed access to the evidence until the ruling is final. The issue of confidentiality may be resolved by the court appointing an expert to look into the material and give the court advice concerning the relevance of the material and its suitability as evidence in the case at hand. The petitioner pays all costs – including those of the defendant – in this kind of procedure, which is very rarely used in patent matters. The authors are not aware of examples where it has been used in pharma patent litigation. Note that materials obtained by discovery or disclo ‑ sure requests in other jurisdictions can be used in Norwegian proceedings. 1.8 Search and Seizure Orders Norway has implemented quite a similar customs regime to Customs Regulation (EC) No 1383/2003, under which the court can issue a PI ordering the cus ‑ tom authorities to seize products if importation of the products will constitute infringement of IP rights. An injunction can be issued even where the recipient of the products is unknown. If necessary, a PI can be issued without an oral hearing of the evidence. Similarly, an order to seize products may also be issued by the customs authorities, following a request
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