Plants and animals, included cell-lines which can differentiate from animals or plants, and processes for the production of plants and animals are excluded from patent protection. Micro-organisms and parts of plants and animals which can not differentiate from plants or animals are eligible to be patented.
The Norwegian Patents Act Section 1 fourth indent number 2 states: Patents shall not be granted for plant or animal varieties or essentially biological processes for the production of plants and animals. Patents may, however, be granted for micro-biological processes and the products thereof. This provision is interpreted as a general prohibition of granting patents for plants, animals, and processed for their production.
Plant varieties are protected by plant breeder’s rights in accordance with UPOV 1978, and can subsequently not be protected by a patent.
There are no such definitions apart from the definitions in the Patents Act. See answer to question 3 above.
[Answer A.3: The Norwegian Patents Act Section 1 fourth indent number 2 states: Patents shall not be granted for plant or animal varieties or essentially biological processes for the production of plants and animals. Patents may, however, be granted for micro-biological processes and the products thereof. This provision is interpreted as a general prohibition of granting patents for plants, animals, and processed for their production.]
Subject-matter concerning micro-organisms, chemical substances as for example genes, including human material, which is identical to what occurs in nature, is patentable if it is isolated and meets the other requirements of the Patents Act, as for example level of inventiveness.
Adequate disclosure of the patentable invention is secured through Section 8 second indent and Section 8a of the Patents Act. The provisions comply with the Budapest Treaty 1977 (as modified in 1980).
Such patents, whether patents for products or processes, benefit from the protection stipulated in Article 28 of the TRIPS Agreement and are subject to the same rules as other patents. However, it is assumed that the rights conferred by a patent for a gene do not extend to plants or animals that contain that gene.
There are no specific exceptions affecting the scope or duration of micro-biological patents. (The general exceptions are listed in IP/Q3/NOR/1 -Answers to questions 3 and 4 from Japan.) As plants are excluded from patentability, the exceptions to a plant breeder’s rights and the exceptions to patent rights are not comparable.
There are no specific provisions for compulsory licences in respect of the kinds of patents in question.
N.B.: Sírvanse cerciorarse de que las respuestas a las preguntas precedentes abarquen cada una de las categorías especificadas en el apartado b) del párrafo 3 del artículo 27, es decir, los microorganismos, los procedimientos esencialmente biológicos para la producción de plantas o animales, los procedimientos microbiológicos, los procedimientos no biológicos, las obtenciones vegetales y las demás invenciones relativas a plantas o animales.
Norway provides for protection of plant varieties by plant breeders’ rights.
Norway has acceded to the International Convention of 2 December 1961 for the Protection of New Varieties of Plants (UPOV Convention) as revised on 23 October 1978. The Norwegian Plant Variety Act and supplementary regulations are in conformity with this convention and partly also with UPOV 1991.
Concurrent protection is not available.
Plant breeders’ rights are governed by the Plant Variety Act No. 32, of 12 March 1993 and Regulations of 6 August 1993. They have been notified to the TRIPS Council, cf. IP/N/1/NOR/1. As we understand the questionnaire, subquestions (b) to (l) refer to other sui generis systems.
According to the Norwegian Patents Act, Section 1, fourth indent, number 2, as it is interpreted, patents cannot be granted for plants, animals, and processes for their production.
An entire, new plant or animal might well be an invention, but it will nevertheless not be patentable. Cf. answer to question 1 above.
[Answer A.1: According to the Norwegian Patents Act, Section 1, fourth indent, number 2, as it is interpreted, patents cannot be granted for plants, animals, and processes for their production.]
Plants and animals are excluded per se from patentability.
There is no other general legal basis that excludes plants and animals from patentability, than the provisions of the Patents Act mentioned in answer 1.
Neither groups nor varieties of plants or animals can be patented.
Micro-organisms that meet the general requirements of patentability are eligible to be patented.
It is not possible to obtain a patent for an essentially biological process for the production of plants or animals.
It is not possible to obtain a patent in Norway covering plants and animals in their natural state. However, micro-organisms identical to those found in nature are eligible to be patented if they are isolated and meet the conditions for patentability.
Norway has acceded to the International Convention for the Protection of New Varieties of Plants (UPOV Convention) of 2 December 1961, as revised on 23 October 1978. The Norwegian Plant Variety Act and supplementary regulations are in conformity with this convention and partly also conform to UPOV 1991.
No. However, consent is necessary if producing the new variety for commercial purposes involves continuous use of the protected variety.
No, provided that the new variety is distinct from the protected variety in the characteristics that define the latter. This will be determined on a case-by-case basis.
No, the party is not required to provide the right holder with remuneration if the activity does not necessitate a consent.
Protection cannot be obtained for a variety that has been offered for sale in Norway with the right holder’s consent prior to the filing of an application for a plant breeder’s right. Offering for sale abroad that has taken place less than four years prior to the filing date, does not preclude protection. For varieties of trees and vine stock the period is six years. In other cases, public knowledge of the variety prior to the filing date does not preclude protection.
No, a plant variety cannot be defined by reference to unexpressed genetic characteristics.
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