RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q3/NOR/1
22 January 1998
(98-0227)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION IN THE FIELDS OF PATENTS, LAYOUT-DESIGNS
(TOPOGRAPHIES) OF INTEGRATED CIRCUITS, PROTECTION OF
UNDISCLOSED INFORMATION AND CONTROL OF
ANTI-COMPETITIVE PRACTICES IN
CONTRACTUAL LICENCES
Norway1
The present document reproduces the introductory statement made by the delegation of
Norway, the questions put to it and the responses give n in the review of legislation on patents, layout-
designs (topographies) of integrated circuits, protection of undisclosed information and control of
anti-competitive practices in contractual licences at the Council's meeting of 26-30 May 1997.2
_______________
I. INTRODUCTORY STATEMENT
In general, Norwegian law on patents, layout-designs of integrated circuits, protection of
undisclosed information and control of anti-competitive practices in contractual licences complied
with the TRIPS Agreement even before the Agreement was signed.  The Agreement required
amendments to Norwegian law on only a few points.
Inventions are protected under the Patent Act 15 December 1967 No. 9.  An amendment
22 December 1995 No. 82 allowed for the granting of a right of priority on the basis of earlier
applications filed in all other WTO Members.  The provisions of subparagraphs b, c (as regards
semi-conductor technology) and l of Article 31 of the TRIPS Agreement were implemented by an
amendment of 20 December 1996 No. 104 - A new set of regulations under the Patent Act entered
into force on 1 January 1997 as an amendment 22 December 1195 No. 82 to the Patent Act
introducing the post-grant opposition procedure entered into force on the same date.
Plant varieties of all species are upon registration protected by the Plant Breeders' Rights Act
12 March 1993 No. 32.  The Act is based on the UPOV Convention 1961 as amended in 1972 and
1978.
                                                     
1As regards laws and notifications relevant to the areas under review and notified by Norway under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/NOR/1, IP/N/1/NOR/P/1 and Rev.1,
IP/N/1/NOR/P/2 and Rev.2, IP/N/1/NOR/P /3-4, IP/N/1/NOR/I/1, IP/N/1/NOR/L/1.
2The minutes of the meeting have been circulated in document IP/C/M/13.IP/Q3/NOR/1
Page 2
Layout-designs of integrated circuits are protected without registration by the Layout-Designs
Act 15 June 1990 No. 27.
Undisclosed information of commercial value are in general protected form disclosure and
unfair commercial use by the provisions on business secrets in the marketing Act 16 June 1972
No. 47, which, in addition to marketing in a narrow sense, deals with unfair commercial practices in
general.  Undisclosed test and other data as mentioned in Article 39.3 of the TRIPS Agreement areprotected from unfair commercial use by an administrative practice that prevents an applicant from
relying on data provided by another applicant without the latter's consent.  For medicinal products this
protection expires when the other applicant has himself had a marketing approval for six years.  Such
data are protected from disclosure by the administrative agency's statutory duty to prevent third
parties from gaining access to such data.
Anti-competitive practices in contractual licences are but one example of anti-competitive
practices which may be dealt with under the general provisions of the Competition Act 11June 1993 No. 65.
II. REPLY TO THE GENERAL QUESTION ON PRIORITY RIGHTS
3
Does your country recognize a right of priority on the basis of an earlier patent
application filed in any other WTO Member by a national of a WTO Member?
The answer is yes.  Since 1 January 1996, it has been clearly stated in the Patent Regulations
that applications filed in all WTO Members, may give rise to a right of priority.  This right does not
depend upon the nationality of the applicant.
III. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
1. According to the Norwegian Patents Act Section 1 subsection 4 no. 2, patents shall not
be granted for "essentially biological processes for the production of plants or animals".  This
provision has been interpreted by the Norwegian patent authorities to cover all processes for the
production of plants or animals.  Could the Norwegian Government explain how these
provisions and the practice of the Act comply with Article 27.3(b) of the TRIPS Agreement?  In
particular, are microbiological processes and the products thereof patentable?
According to the first part of Article 27.3(b) of the TRIPS Agreement, the Member Sates may
exclude plants and animals other than micro-organisms from patent protection.  This is a wise
provision, as in different countries in different parts of the world there may exist strongly held
objections of a religious, moral or ethical nature to patent protection of plants and animals.  Taking
into account the indirect product protection that a holder of a patent for a process shall enjoyaccording to Article 28, it is our opinion that his concession to religious, moral and ethical
considerations must take precedence over the exact wording of the subparagraph in the interpretation
of the TRIPS Agreement on this point.
As regards microbiological processes, such processes are not excluded from patent protection
in so far as the process is not a process for the production of plants or animals.  Products of
microbiological processes are not excluded from patent protection in so far as the product is not a
plant or an animal.
                                                     
3At the meeting of the TRIPS Council of 27 February 1997, Members agreed to respond to this
question in the context of the present review (document IP/C/M/12, paragraph 18).IP/Q3/NOR/1
Page 3
[Follow-up question from the EC]
Please explain the basis within the TRIPS Agreement which allows for the exclusion
from patentability of non-biological and microbiological processes for the production of plants
and animals given that the exclusions from patentability detailed in Article 27(3)(b) clearly do
not extend to such processes.  If a member wishes to exclude from patentability animals and
plants obtained directly by non-biological processe s then is he not able to do so without needing
to exclude the processes per se?
We refer to our answer to the first question on patents from the European Commission.  In
our opinion, indirect product protection covering plan ts and animals produced by a process protected
by a patent, is not consistent with the concession to religious, moral and ethical considerations as may
exist in different countries in different parts of the world, contained in the first part of Article 27.3(b)
of the TRIPS Agreement.  The question, as we see it, is whether this should be taken care of in the
interpretation of Article 27 or should be taken care of as an implicit exception from Article 28.1(b).The first solution seems to be the solution that is in best harmony with the TRIPS Agreement as
Article 27.3(b) anyway contains semantic ambiguities.
2. The amendments to the Patent Act Sections 46 and 49, adopted by Act of
20 December 1996 no. 104, do not include any provision corresponding to Article 31(f) of the
TRIPS Agreement  ("any such use shall be auth orized predominantly for the supply of the
domestic market").  According to Odelstings Proposition no. 73 (1995-96) pp. 5-6, the Ministry
of Justice is of the opinion that it is not necessa ry to legislate Article 31(f) as the court will take
into consideration the supply of the domestic market when prescribing the scope of the licence.
Could the Norwegian Government clarify whether and to what extent the provision laid down
in Article 31(f) will be binding in the courts in light of the fact that this provision is onlymentioned in the preparatory works of the Act and not in the Act itself?
The answer is yes, partly because that statement in itself is a valid source of law in the
interpretation of the Norwegian Patent Act, and partly because the TRIPS Agreement is a valid source
of law for the interpretation of provisions of national law that are considered to fulfil the Agreement.
3. According to the Act of 12 March 1993 relating to Plant Breeders' Rights Section 1,
plant breeders' rights may only be granted to varie ty owners who (a) are residents or have their
registered office in this realm, or (b) are nation als of or are residents or have their resident
office in a State which is a member of the In ternational Union for the Protection of New
Varieties of Plants.  According to the last paragraph of Section 1, the King may prescribe that
plant breeders' rights may be granted in other cases.  According to Regulations concerning
Plant Breeders' Rights Section 2, plant breeders' rights may be granted to applicants from
countries which are not members of the Union if it is of particular significance to Norwegian
plant production, or when warranted by other considerations.  This does not seem to fully
implement the national treatment obligation under Article 3 of the TRIPS Agreement.  Please
explain.
After some preliminary doubt, we have come to the conclusion that the national treatment
obligation of the TRIPS Agreement should be considered to cover plant breeders' rights.  Althoughthe Norwegian Plant Variety Board has received no applications from applicants from countries which
are Members of WTO, but are not members of UPOV, the Board intends to apply the "if warranted by
other considerations" clause in Section 2 of the Regulations concerning Plant Breeders' Rights, if the
situation should arise.  However, the Norwegian Ministry of Agriculture is considering an amendment
to the regulation to clarify that applicants from all Members of WTO are entitled to apply forprotection of plant varieties in Norway.IP/Q3/NOR/1
Page 4
4. According to Section 7, paragraphs 2 and 3 of Act of 15 June 1990 no. 27 relating to the
Protection of Layout-design for Integrated Circuits, a court may, under special circumstances,decide that a person who in good faith has acquired a copy of a layout-design, shall have the
right to import, commercially exploit or reprodu ce it on reasonable conditions as laid down by
the court.  Under quite special circumstances, a court may decide that a negligent acquirer shall
have the same rights.  This does not seem to implement the entire scope of Article 37.1 of theTRIPS Agreement.  Please explain.
Paragraph 1 of Article 37 imposes an obligation on the Member States to grant certain rights
to persons who in good faith have acquired an integrated circuit or a product incorporating anintegrated circuit.  It therefore deals with another question that the provisions of the Norwegian
Layout-design Act put in question by the European Union.
However, one could reasonably ask whether the Norwegian provisions are compatible with
paragraph 2 of Article 37 of the TRIPS Agreement.  We are prepared to consider an amendment tothose provisions if there is a fairly clear and general view that such provisions are incompatible with
the TRIPS Agreement.
5. Could the Norwegian Government explain whether and how Article 39.3 of the TRIPS
Agreement is implemented in Norwegian law?
As regards pharmaceutical products, under the Agreement on the European Economic Area
Norway is bound by Council Directive 65/65/EEC of 26 January 1965 concerning proprietary
medicinal products and Council Directive 81/8 51/EEC of 28 September 1981 concerning veterinary
medicinal products, amendments to the directives adopted by the Council of the European Union
before 1 January 1993 included, cf. annex II chapter XIII of the EEA Agreement.
As regards agricultural chemical products, such data as mentioned in Article 39.3 of the
TRIPS Agreement are protected from unfair commercial use and disclosure by the administrative
agency's duty to prevent third parties from graining access to such data, cf. the general provisions onpledge of secrecy in the Norwegian Public Administration Act of 10 February 1967.
IV. REPLIES TO QUESTIONS POSED BY JAPAN
1. In your country, are the following subject matters protectable by patent:  (1) plants and
animals, and (2) plant and animal varieties?
The answer is no, cf. section 1 paragraph 4 subparagraph 2 of the Norwegian Patent Act.  The
wording of the subparagraph is ambiguous, but its interpretation is unambiguous in this respect.  Plant
varieties may be protected under the Norwegian Plant Breeders' Right Act.
2. In your country, is the act of offering for sale included in the exclusive rights of patent?
The answer is yes.  It is clearly stated in section 3 of the Norwegian Patent Act
15 December 1967 No. 9.
3. In your country, what kinds of acts are rec ognized as exceptions to the exclusive rights
conferred by a patent right?
According to the third paragraph of section 3 of the Norwegian Patent Act, the exclusive right
shall not include:IP/Q3/NOR/1
Page 5
- exploitation outside the course of a professional activity;
- exploitation of products protected by the patent which have been put on the market in
the European Economic Area by the patent holder or with his consent;
- exploitation by experiment relating to the subject matter of the invention;  and
- preparation in a pharmacy in individual cases of a medicine in accordance with a
prescription, and acts carried out with a medicine so prepared.
4. In your country, in which case is use wi thout the authorization of the right holder
permitted, including use by the government or by third parties authorized by the government?
Use of an invention without authorization of the patent holder is in Norway permitted in five
different kinds of cases:
- A third party who was exploiting the invention at the priority date of the patent
application may continue that exploitation unless the exploitation constituted an
evident abuse in relation to the applicant or his predecessor in title, cf. sections 4 and6 of the Norwegian Patent Act.
- Temporary presence of foreign vehicles, vessels or aircraft embodying protected
inventions does not constitute patent infringement, and spare parts may in most cases
be imported for the repair of foreign aircraft, cf. section 5.
- Compulsory licences may be granted in four different kinds of cases, cf. sections 45
to 48.  However, we know of no compulsory licences finally granted under the
present Patent Act 1967.
- When the country is at war or under threat of war or in similar circumstances, the
Government may if necessary require the surrender of property rights, patent rights
included.  The patent holder is entitled to compensation.
- Inventions of importance to the defence of the country may be expropriated even in
peace time, cf. the Act of 26 June 1953 No. 8 relating to such inventions.  The patent
holder is entitled to compensation.
5. In your country, how is the obligation under Articles 34.1 and 34.2 of the TRIPS
Agreement regarding the shift of the burden of proof in civil proceedings for patentinfringement related to a process patent implemented?
Paragraph 1 of Article 34 allows the Member States to choose between two alternative ways
of fulfilling this obligation.  In our view, alternative (b) adds nothing to the general principles that
under Norwegian legal tradition will guide a judge when assessing the facts to which he shall apply
the law.
V. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Article 1(3) of the Norwegian Patent Law provides that "programs for computers" are
not considered to be inventions.  Please explain whether, under this provision, inventions withinIP/Q3/NOR/1
Page 6
the categories specified below are not eligible to be patented under Norwegian law,
notwithstanding the fact that the invention is novel, involves an inventive step, and is useful:
(a) process inventions which, in whole or in part, consist of steps that are performed
by a computer and are directed by a computer program;
(b) product inventions consisting of elements of a computer-implemented invention,
including in particular:
(i) machine-readable computer program code stored on a tangible medium
such as a floppy disk, computer ha rd drive or computer memory; and
(ii) a general purpose computer whose novelty over the prior art arises
primarily due to its combination with a specific computer program.
If any of these types of inventions are excluded from eligibility to be patented, please
explain how the Norwegian patent law complies with the obligations of Article 27 of the TRIPS
Agreement, which mandates patent eligibility for all categories of invention withoutdiscrimination.
According to section 1 of the Norwegian Patent Act a computer program in itself shall not be
considered as an invention.  This provision does not exclude an invention form patent protection for
the reason that the invention relies on a computer program for it solution of a specific technical
problem.  In its interpretation of the provision, the Norwegian Patent Office follows the EuropeanPatent Office's interpretation of the corresponding provision of the European Patent Convention.
[Follow-up question from the US]
In its answer to question No. 1 from the United States, the Government of Norway
specifies that an invention is not to be excluded from patent protection for the reason that it
relies on a computer program for its solution of a specific technical problem.  The answer notes
that this is consistent with the interpretation of the European Patent Office's interpretation of
the corresponding provision of the European Pa tent Convention.  The answer does not indicate
whether, under Norwegian law or practice under the EPC, the specifically identified product
inventions are eligible to be patented if they satisfy the criteria of being novel, involving an
inventive step and being industrially applicable.  The Government of Norway is requested toindicate whether the inventions specified in question 1(b)(i) and (ii) are eligible to be patented
under Norwegian law.
Computer-related inventions as mentioned in question 1(b) (i) and (ii) are not excluded from
patentability under the Norwegian Patent Act.
2. Section 3 of the Patents Law excludes from the exclusive rights of a patent the
"exploitation for non-commercial purposes." Please explain how this provision has been
interpreted by Norwegian courts by giving examples, if any, of the types of activities that have
been found to be "non-commercial" and permissible without the consent of the patent owner.
Please also explain whether Norwegian courts consider the economic effect of the
non-commercial activities being conducted by a party other than the patent owner.  If the courts
do not consider this variable, please explain how this provision of Norwegian law complies with
Articles 28 and 30 of the TRIPS Agreement, which collectively require that the economic effectof the activities on the patent owner be considered.IP/Q3/NOR/1
Page 7
In the English translation of the Patent Act notified to WTO, the term "exploitation for non-
commercial purposes" has been used.  A more accurate translation would be "exploitation outside the
course of a professional activity".  Thus, use of an invention by for instance the government or a
municipality or a charitable organization will in general not be covered by this limitation to the sole
right of the patent holder.  We have been unable to find any Norwegian court decisions dealing with
this provision in the present Patent Act 1967.
3. Section 5 of the Patents Law provides that temporary present of foreign vessels does not
constitute patent infringement.  It, however, further provides that parts the importation of
which would infringe a patent is permitted if reciprocal rights are available in the country of
origin.  Please explain how this Article compli es with Article 3 of the TRIPS Agreement, which
requires most-favoured treatment for all WTO Members.
Pursuant to the second paragraph of section 5 of the Patent Act, section 74 of the Patent
Regulations provides that spare parts and accessories for aircraft may be imported into Norwaywithout the permission of a patent holder and used for the repair of aircraft from countries that are
party to the Chicago Convention 1944 on International Civil Aviation and in addition are party to the
Paris Convention for the Protection of Industrial Property or anyway have an adequate patent
legislation.  This provision in the Patent Regulations is necessary in order for Norway to comply with
Article 27 subparagraph (b) of the Chicago Convention.  As it is the nationality of the aircraft and notthe nationality of the patent holder, the owner of the aircraft or any other person that is decisive, this
regulation does not seem  to contravene the most-favoured-nation treatment obligation under the
TRIPS Agreement.  However, if there is a fairly clear and general view that such a privilege should be
extended to aircraft from all Members of WTO, Norway will abide by that view, cf. Article 30 which
allows for limited exceptions to the exclusive rights conferred by a patent.
4. Section 45 of the Patents Act specifies that a third party who wishes to work a patented
invention in Norway without the consent of the pa tent owner can obtain a compulsory licence if
the patent owner has not worked in the invention to a reasonable extent within Norway.  This
provisions further provides that the King may co nsider working in other countries to constitute
working in Norway, on the condition of reciproca l treatment in the other country.  With regard
to this provision, please explain:
(a) whether the King of Norway has declared  that working of the invention in any
WTO Member shall be considered in evalua tion of the question of whether the
invention is being worked to a reasonable extent in Norway;
(b) whether the King of Norway has decla red that working of the invention in any
specific WTO Member is to be considered in evaluation of application of this
provision;
(c) whether the Norwegian Patent Office or Norwegian courts will consider
importation to satisfy the requirement of working to a reasonable extent within
Norway; and
(d) how this provision complies with Article 27.1 of the TRIPS Agreement, which
prohibits discrimination in the enjoyment of patent rights based on whetherproducts are produced locally or imported.
The Government may provide that the working of an invention in a third country shall be
considered equivalent to working the invention in Norway.  However, the Government has not done
that, neither for the TRIPS countries in general nor for any specific third countries.IP/Q3/NOR/1
Page 8
A compulsory licence cannot be granted if the patent holder has a reasonable ground for the
non-working of the invention in Norway.  In the preparatory works of an amendment to the Patent Act
in 1991, it was emphasized that such a reasonable ground for non-working would exist if the
Norwegian market in terms of quantity, price and sales conditions was supplied in an adequate and
non-discriminatory way and, due to the kind of product, the production was most rationally located to
one or a few places.
As regards to provision of Article 27 of the TRIPS Agreement that states that patent rights
shall be enjoyable without discrimination to whether products are imported or produced locally, we
have not understood this provision as relevant to the question of compulsory licences in cases of non-
working.
[Follow-up question from the EC]
Please explain how the situation where a co mpulsory licence is granted because demand
for a product in a WTO Member is being met by importation whereas such a compulsorylicence would not have been granted if the demand was being met by local production does not
contravene  Article 27 of the TRIPS Agreement which requires patent rights to be enjoyable
without discrimination as to whether prod ucts are imported or locally produced.
We have not understood the last sentence of Article 27.1 of the TRIPS Agreement as relevant
to the question of compulsory licences in cases of non-working.  However, if there is a fairly clear andgeneral view within the TRIPS Council that that is the case, we are prepared to consider an
amendment to the Patent Act on this point.
5. Section 46 of the Patents Acts permits the holder of a dependent patent to obtain a
compulsory licence from the owner of the dominant patent "if this is found to be justified inview of the importance of the former invention or for other special reasons".  The second clause
in this Article specifies that the dominant pa tent owner can obtain a compulsory licence from
the dependent patent owner "unless special reasons make it undesirable".  With regard to this
authority, please explain:
(a) what circumstances have been found by the Norwegian courts to constitute
"other special reasons";  and
(b) how this provision complies with Article 31(l)(1) of the TRIPS Agreement,
particularly the requirements that:
(i) dependent patent compulsory licences be available only where the
dependent patented invention involves a technical advance ofconsiderable economic significant and for no other reasons;  and
(ii) any such compulsory licence granted to the dependent patent owner be
non-transferable.
The specific provisions in Article 31 paragraph (l) of the TRIPS Agreement were
implemented by an amendment of 20 December 1996 No. 104 to the Norwegian Patent Act.
6. Section 47 of the Patents Law permits the grant of a compulsory licence to anyone when
required by the public interest.  Please explain the conditions that will justify a grant of acompulsory licence under this provision, and how this provision complies with the requirementIP/Q3/NOR/1
Page 9
in paragraph (a) of Article 31 that each co mpulsory licence must be considered on "its
individual merits".
As there have been no applications for compulsory licences under this provision, the only
authoritative guidance for its interpretation is found in  the preparatory works.  The best guidance is to
be found in the common Nordic committee report from 1963 on new Nordic patent legislation.  The
report emphasized that the provisions should be applied with considerable caution, and that purelyprivate or commercial interests should be of no rele vance.  An application will be decided by the court
on the merits of each case, cf. Article 31(a) of the TRIPS Agreement.
7. Section 48 of the Patents Law permits the grant of a compulsory licence to anyone who
used the patented invention at the time the pate nt application was laid open.  How this complies
with the requirement in Article 31(a) of the TRIPS Agreement that each compulsory licence
must be considered on "its individual merits"?
Applications for such compulsory licences are decided by the courts one by one on the merits
of each case.
8. Sections 45 through 48 of the Patents Law provide four types of compulsory licences.
Sections 49 and 50 enumerate specific principles  for granting these four types of compulsory
licences. No provisions in the Norwegian patent law appear to impose specific limitations or
conditions on either the terms of a compulsory licence or on the decision to grant or revoke suchlicences.  Please explain how the Norwegian la w complies with the following provisions of
Article 31 of the TRIPS Agreement:
(a) paragraph (a), which requires any decisi on to grant a compulsory licence to be
considered on its own individual merits;
(b) paragraph (b), which requires any prospective licensee to request a voluntary
licence on reasonable commercial terms from the patent owner;
(c) the first clause of paragraph (c), which requires that the scope of any licence be
limited to the purpose for which it was authorized;
(d) the second clause of paragraph (c), which specifies that licences for inventions in
the field of semiconductor technology may only be justified for publicnon-commercial use or to remedy a j udicial or administrative finding of
anti-competitive practices;
(e) paragraph (f), which restricts the authorization provided by a compulsory
licence to use of the patented invention fo r supplying the domestic market of the
Member;
(f) paragraph (g), which specifies that the patent owner be able to seek termination
of the licence when the conditions leadin g to its grant cease to exist and are
unlikely to recur;
(g) paragraph (h), which  requires the remuneration to take into account the
economic value of the authorization prov ided by the compulsory licence; and
(h) paragraphs (i) and (j), which require that the patent owner be able to appeal
decisions relating to matters relating to the compulsory licence to a court or
other independent and distinct reviewing authority.IP/Q3/NOR/1
Page 10
Paragraph (a):
Each application for a compulsory licence is decided by the court.  Thus, the application will
be decided on the merits of each individual case.
Paragraph (b):
This requirement was implemented by an amendment of 20 December 1996 No. 104 to the
Norwegian Patent Act.
Paragraph (c):
The special requirements in respect of semi-conductor products were implemented by an
amendment of 20 December 1996 No. 104 to the Norwegian Patent Act.  The general requirement on
the scope and duration of compulsory licences will be taken into account by the courts anyway, partly
because the same is stated in the preparatory works of the Patent Act and partly because an
international convention to which Norway is party, such as the TRIPS Agreement, is a valid source of
law in the interpretation of national legislation.
Paragraph (f):
This requirement will be taken into account by the court, partly because the requirement is
mentioned in the preparatory works of an amendment to the Patent Act in 1996 and partly because the
TRIPS Agreement itself is a valid source of law for the interpretation of provisions of national law
that are considered to fulfil the Agreement.
Paragraph (g):
The requirement is fulfilled by paragraph 2 of section 50 of the Norwegian Patent Act.  That
paragraph allows the parties to apply for the termination of a compulsory licence when the
circumstances have changed considerably.
Paragraph (h):The economic value of a compulsory licence to the licensee will always be one of the factors
that will be taken into account when the remuneration to the patent holder is decided.  A provision in
the Patent Act to that effect, will be superfluous.
Paragraphs (i) and (j):
Applications for compulsory licences are granted by the courts, which shall at the same time
decide the terms of the licence and the remuneration to the patent holder.  According to the general
provisions of the Civil Procedure Act, such a court decision by the court of first instance may be
appealed to the Appeal Court, whose decision may as  a general rule be appealed to the Supreme Court
of Norway.
9. Section 71 of the Patents Act provides that inventions that are important to the defence
of the country are governed by a separate act.  Please identify this Act, explain its provisions
and how they relate to the existing patent laws of Norway.
In Norway, patent questions relating to inventions of importance to the defence of the country
are governed by the Act of 26 June 1953 No. 8 re lating to such inventions.  When the Norwegian
Patent Office receives an application for patent protection of an invention that the office believes to beIP/Q3/NOR/1
Page 11
of importance to the defence of the country, the Office shall notify the Ministry of Defence.  The
Ministry may decide that the application shall be kept secret.  If so, and the Patent Office finds that
the invention satisfies the conditions of patentability, the patent is granted as a secret patent.  If the
decision to keep the invention secret is reversed at  a later stage, the patent will then be laid open to
public inspection with the ordinary possibility for third persons to oppose the patent within nine
months.  The Act also opens for expropriation of the rights to an invention of importance to thedefence of the country.  The inventor or applicant is entitled to compensation.
10. Please indicate how many compulsory licen ces on a yearly basis have been granted in
Norway since 1 January 1993.
The answer is zero.  Under the present Patent Act 1967 no compulsory licences have been
finally granted.  A procedure for such a licence was initiated in 1965 under the Patent Act 1910 and
succeeded in 1970.  The only procedure under the present Patent Act that we know of, was initiated in
1968 and settled by the parties in 1973.
11. Please explain how Norwegian law complies with the obligations of Article 34 of the
TRIPS Agreement, which requires Members to make available in civil proceedings to enforce a
patent the option of shifting the burden of proof regarding use of a patented process to an
alleged infringer who has produced the identical product as that which is produced by a
patented process.
Paragraph 1 of Article 34 allows the Member States to choose between two alternative ways
of fulfilling this obligation.  In our view, alternative (b) adds nothing to the general principles that
under Norwegian legal tradition will guide a judge when assessing the facts to which he shall apply
the law.
[Follow-up question from the US]
Please clarify whether the following interp retation of the answer provided by the
Government of Norway to question 11 from the United States is correct:
In Norway, where a party is accused of infringing a patented process and the product
produced by both the patented and allegedly infringing process are identical, judicial
authorities can rely on the Norwegian legal tradition to place the burden on the party
accused of infringement that he used a pr ocess different from the patented process.
If this is correct, please provide either a basis in Norwegian law for this authority, or
provide citations and the text of cases where such  a shifting in the burden of proof occurred.
Part of Norwegian legal tradition is the so-called "principle of free evaluation of evidence".
By that is meant that a court shall be guided by common sense and scientific considerations etc., andnot by formal considerations of a normative characte r, when evaluating the pieces of evidence or lack
of pieces of evidence, produced by the parties.  Under alternative (b) of Article 34.1 of the TRIPS
Agreement, infringement shall, "in absence of proof to the contrary", be presumed "if there is a
substantial likelihood" that the alleged infringer has exploited the process protected by the patent.  In
our view, it follows directly from the common sense approach that the court shall follow, that in such
a situation its decision must be based on the assumption that the process patent has been infringed.
Whether the products are identical or not, are of no direct importance.  The crucial aspect is that thereexists "a substantial likelihood" of infringement and an "absence of proof to the contrary".  In the two
most extensive series of court reports in No rway, we have found no court decision dealing with
infringement of process patents under the Patent Act 1967.IP/Q3/NOR/1
Page 12
12. Please explain the measures, if any, that have been implemented in Norway to protect
against unfair competition those parties that ha ve provided confidential test or other data
concerning a pharmaceutical or agricultural chemical product to Norwegian regulatory
authorities pursuant to a request for marketing approval.
Under the Agreement on the European Economic  Area, Norway is bound by the following
directives adopted by the Council of the European Union:
- Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions
laid down by law, regulation or administrative action relating to proprietary medicinal
products, as amended by the Council on 20 May 1975, 26 October 1983,
22 December 1986, 3 May 1989 and 22 September 1992; and
- Council Directive 81/851/EEC of 28 September 1981 on the approximation of the
laws of the member States relating to veterinary medicinal products, as amended by
the Council on 13 December 1990 and 22 September 1992.
Therefore, data as mentioned in paragraph 3 of Article 39 of the TRIPS Agreement
concerning pharmaceutical products are in Norway protected from unfair commercial use and
disclosure in generally the same way as in the Member states of the European Union.  An applicant
for a marketing approval is not allowed to rely on undisclosed test data submitted by another applicant
unless the other applicant consents or has himself had a marketing approval for at least six years.  Thisprotection for unfair commercial use is embodied in administrative practice.  However, the Norwegian
Ministry of Social Affairs is considering an adoption of a regulation under the Pharmaceutical
Products Act to the same effect.  The data are protected from disclosure by the administrative agency's
duty to prevent third parties from gaining access to such data, cf. Article 30 of the Pharmaceutical
Products Act.
As regards agricultural chemical products, such data as mentioned in Article 39 paragraph 3
of the TRIPS Agreement are protected from unfair commercial use and disclosure by the
administrative agency's duty to prevent third parties from gaining access to such data, cf. the general
provisions on pledge of secrecy in the Norwegian Public Administration Act of 10 February 1967.
[Follow-up question from the US]
In its answer to question 12 from the United States, the Government of Norway specifies
that it protects against disclosure test data submitted to regulatory authorities to support the
marketing approval of agricultural chemical products.  Please explain how Norway protects
such data against unfair commercial use.  In particular, does Norway prevent later applicants
for marketing approval of the same chemical enti ty form relying on such data for a period of
years following the marketing approval of the original product (as is the case for
pharmaceutical products)?
As regards undisclosed test and other data as mentioned in Article 39.3 of the TRIPS
Agreement concerning agricultural chemical produc ts, an applicant for a marketing approval is not
allowed to rely on data submitted by another applicant unless the other applicant consents.  This
protection is embodied in administrative practice.  No time-limit for the duration of this protection has
been established in the administrative practice.
13. Please explain whether Norwegian law conditions the enjoyment of protection in test
data provided to a Norwegian regulatory agency on the coexistence of patent rights in the
regulated product.  If such a condition is imposed (i.e., the data is protected against disclosure to
third parties only while a patent remains in fo rce covering the product), please explain how theIP/Q3/NOR/1
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Norwegian law complies with the requirements of Article 39.3 of the TRIPS Agreement, which
requires WTO Members to prevent use of such da ta in such a fashion as to represent unfair
competition to the party supplying the data and does not condition enjoyment of this protection
on the existence of concurrent patent protection.
In Norway, the protection of test data as mentioned in Article 39 of the TRIPS Agreement
does not depend on the coexistence of a patent.
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