NORWAY LAW AND PRACTICE Contributed by: Lars Erik Steinkjer, Nora Bratheim and Guro S K Nybø, Wikborg Rein Advokatfirma AS
dation of a patent, but there are very few exam - ples 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 pro - ceedings 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, informa - tion related to patent infringement – can under certain conditions be obtained prior to an action for infringement. The securing of evidence does not necessarily 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 particu - larly important to obtain access to the evi - dence 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 opposite party could lead to obstruction of the securing of evidence. If granted, the oppo - site 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 pat - ent litigation. Note that materials obtained by discovery or disclosure requests in other jurisdictions can be Norway has implemented quite a similar cus - toms regime to Customs Regulation (EC) No 1383/2003, under which the court can issue a PI ordering the custom authorities to seize prod - ucts 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. The customs authorities can also, ex officio, decide to withhold goods for up to ten days if they have reasonable 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. To prevent further release of the goods, the patent owner must obtain a prelimi - nary injunction. 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 used in Norwegian proceedings. 1.8 Search and Seizure Orders Norwegian courts recognise a Doctrine of Equiv - alents (DoE). The legal test follows from the Nor -
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