NORWAY Law and Practice Contributed by: Vebjørn Krag Iversen, Nora Bratheim, Kristin Erstad Remvik and Guro S. K. Nybø, Wikborg Rein Advokatfirma AS
of action accrued. This period will commence at the time of infringement; however, if the infringement has been concealed during this three-year period, the damage claim is not time-barred until the expiration of a one-year period from the time when the claimant should – with reasonable diligence – have discovered the infringement. Damages are normally assessed as part of the infringe ‑ ment action – ie, there is no separate procedure for establishing the quantum of damages. The infringer is liable for damages in the form of remuneration for the exploitation of the invention and, if applicable, compensation for any further economic loss to the claimant caused by the infringement. The patentee can also choose to claim the infringer’s profits. Thus, the patent owner can either claim their own lost prof ‑ its, reasonable royalties on sales by the defendant, or the defendant’s profits. If the infringement has been committed intentionally or through gross negligence, the patentee can claim compensation corresponding to 200% of a reason ‑ able royalty. With the exception of the option of claiming 200% of a reasonable royalty when the patent infringement was wilful or grossly negligent, punitive damages are not an option under Norwegian law. 5.5 Legal Costs Legal costs are normally recoverable from the losing party unless the court decides to reduce the amount, owing to it being unreasonably high. Hence the losing party will typically be required to pay all or most costs to the party that prevails in a litigation. 5.6 Relevance of Claimant/Plaintiff Conduct to Relief The court may decide that the winning party should bear its own costs partially or in full – for example, if the winning party is to blame for the matter coming before a court or has declined a reasonable settlement offer. The Norwegian Dispute Act further provides that a party may recover costs that arise from the counter ‑ party’s conduct, such as censurable actions or omis ‑ sions that make the procedure more complex than it already is. The parties’ conduct prior to the pro ‑
ceedings is also relevant – for example, if the claimant fails to notify or inform about the existence of relevant evidence.
6. Other IP Rights 6.1 Trade Marks
Trade mark disputes within the life sciences and phar ‑ ma sector are not very common in Norway. The few cases that have been tried before the courts concern medical devices and repacking issues related to paral ‑ lel import of pharmaceuticals. 6.2 Copyright Copyright issues may also arise in the life sciences and pharma sector, but are very seldom litigated before the courts. 6.3 Trade Secrets Trade secrets disputes have been seen within the life sciences and pharma sector, particularly in relation to a company’s former consultants or employees. The relevant sources of law are the Norwegian Trade Secrets Act of 2021 and the Norwegian Marketing Act of 2009.
7. Appeal 7.1 Timeframe to Appeal Decision Preliminary Injunctions
A PI decision may be handled in the second instance if appealed. An appeal may be filed within a limited one- month time period. The appellate court will normally only review the case based on the written submissions
and evidence. Main Actions
A judgment in infringement and/or revocation proceed ‑ ings from the Oslo District Court may be appealed to the “Borgarting” Court of Appeal. The Court of Appeal may refuse to hear an appeal if it is obvious that it cannot succeed. This exception is rarely exercised, but its use is increasing also in IP cases if it is consid ‑ ered very likely that the outcome will be unchanged. A court of appeal hearing in Norway implies hearing the case all over again with evidence, expert witnesses
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