NORWAY Law and Practice Contributed by: Vebjørn Krag Iversen, Nora Bratheim, Kristin Erstad Remvik and Guro S. K. Nybø, Wikborg Rein Advokatfirma AS
1.12 Experts In matters where complex scientific issues are involved in terms of validity and/or infringement, the party-appointed experts will normally submit reports and provide testimony during the proceedings. In a PI action, the court may also appoint independent expert witnesses with particular expertise in the rel ‑ evant field. Typically, two court-appointed experts will attend the hearing including the evidence; at the end of evidence, they will deliver a report and also expand their view by oral testimony to the judge. Thereafter, it will be for the counsel to put further questions to the court-appointed experts – following which, the experts will leave the courtroom and not take further part in the proceedings. In an action on the merits, with infringement and/or validity issues at hand, there will be no court-appoint ‑ ed experts as per PI proceedings; instead, expert lay judges may be appointed by the court. They will typi ‑ cally have technical expertise in the relevant field. In some pharma patent litigation cases, the expert lay judges have comprised one technical expert (eg, a professor in biochemistry) and a patent attorney work ‑ ing within life sciences. The two expert lay judges participate during the hear ‑ ing as members of a panel of three, including the legal judge. In the court of appeal, this will be a panel of five Results from experiments may be filed as evidence in order to prove/disprove infringement/validity of patents and Norwegian courts allow experiments in patent cases. There are no specific procedures that must be followed in order for the experimental results to be admissible; however, the courts will assess the relevance of the experiments based on the protocols of the experiment(s). 1.14 Discovery/Disclosure In response to an infringement claim, the defendant will normally provide evidence in the form of a prod ‑ uct or process description. Confidential information in such descriptions may be redacted. (including three legal judges). 1.13 Use of Experiments
filed by the patent owner or an authorised licensee. The customs authorities can also, ex officio, decide to withhold goods for up to ten days if they have reason ‑ able grounds to suspect that the goods will constitute infringement of IP rights. If the goods are withheld, notice shall be given to the recipient of the goods and the patent owner. Unless the recipient opposes it, the seized goods may be destroyed. To prevent further release of the goods if the recipient opposes destruc ‑ tion, the patent owner must file an infringement action before the courts. 1.9 Declaratory Relief Declaratory relief is, in principle, available in Norway, both in the form of declarations of non-infringement as well as in the form of “arrow declarations”. 1.10 Doctrine of Equivalents Norwegian courts recognise a Doctrine of Equiva ‑ lents (DoE). The legal test follows from the Norwe ‑ gian Supreme Court decision in the Donepezil matter (Rt-2009-1055). The three questions to be answered in the DoE are: • Does the variant achieve the same solution/solve the same technical problem as the patented inven ‑ tion? • Would a person skilled in the art find the modifica ‑ tions from the patented invention obvious? • Does the variant belong to the available prior art? If these three questions are answered affirmatively, infringement of the original patent can be established. The Norwegian DoE is, however, rather narrow in scope. According to the Supreme Court in the above- mentioned decision, protection by equivalence is a matter of claim construction and can only encompass modifications that are “fairly identical” to the features
set out in the patent claim. 1.11 Clearing the Way
Filing a claim for revocation and/or a non-infringement declaration is often used as a strategy to “clear the way” before the launch of a new product. However, there is no legal obligation for a potential competitor to clear the way ahead of product launches.
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