4 The Government’s policy on intellectual assets and intellectual property rights

The global knowledge economy and new types of innovation provide new opportunities for the Norwegian business sector. This results in considerable challenges associated with administering intellectual property rights. Norwegian businesses are competing on an increasingly international stage, and with knowledge as the primary competitive factor. The scope of applications and registered rights has grown strongly in recent years, particularly in the emerging economies. The scope of piracy and counterfeiting is also increasing. These trends put pressure on both national and international systems for administering intellectual property rights, and require a transition in line with current developments.

In order to promote greater awareness and expertise of, and more strategic use of, intellectual property rights in the business and public sectors, the Government will endeavour to:

• Accede to international agreements and update regulations and systems,

• Improve training in intellectual property rights,

• Continue to develop the Norwegian Industrial Property Office,

• Continue to develop the overall guidance within intellectual property rights,

• Combat piracy and counterfeiting,

• Improve the knowledge base for further policy development.

Accession to international agreements and updating regulations and systems

A well-functioning intellectual property rights system requires thorough regulation of the role of the patent authorities and how the intellectual property rights are protected and enforced. Acceding to international agreements and updated national regulations are important in order to secure a well-functioning legal protection system.

The Norwegian regulations are modern and up-to-date. They also fulfil the requirements of the EEA Agreement. The regulations have largely been harmonised with other countries through multinational agreements and the EEA Agreement.

In 2008, Norway acceded to the European Patent Convention (EPC) and became a member of the European Patent Organisation (EPO).

In cooperation with the governments of Denmark and Iceland, the Government has established the Nordic Patent Institute (NPI). Its objective is to counteract the loss of expertise from NIPO as a result of the reduced number of applications due to Norway’s EPO membership.

A new Trademarks Act was adopted in 2010. Among the most important changes was to establish by law the principle of so-called EEA regional consumption. EEA regional consumption currently applies for patents, copyrights, design rights, layout (topographies) circuits and plant breeding rights.

A new statute concerning NIPO and the Norwegian Board of Appeal for Industrial Property Rights entered into force on 1 April 2013. The new statute establishes a separate, independent appellate body, the Norwegian Board of Appeal for Industrial Property Rights. The Board will hear appeals of NIPO decisions, and solidifies the independence between the proceedings in the first and second instance. Businesses will experience this as safer, quicker and more user-friendly.

At the request of the Ministry of Justice and Public Security, a study has been carried out on pledging intellectual property rights as security.1 It recommends introducing a special right to pledge patents and plant breeding rights, though no other type of intellectual property.

The London Agreement

The London Agreement entails reducing the translation requirement from the entire patent to merely the patent claim. For the business sector, this means a considerable reduction in translation costs. The Ministry of Trade and Industry will send a bill to accede to the London Agreement out for hearing in the autumn of 2013. It will also include a proposal for national patent applications to be submitted in English.

Patent litigation insurance

One possible explanation for the relatively low patent activity among Norwegian businesses is that small and medium sized businesses find it difficult to defend themselves against potential litigation with larger businesses. In this connection, it has been pointed out that there are no commercial insurance schemes to alleviate the costs of potential litigation.

On this basis, NIPO will investigate whether it is possible to establish private, commercial litigation insurance for intellectual property rights in the Norwegian market.

Witness exemption and authorisation of patent agents

In several countries, including the US and UK, patent agents are exempt from the obligation of giving evidence in court. This exemption does not apply in Norway. In the event of a lawsuit brought in a country with witness exemption, businesses that use Norwegian patent agents could experience a situation where their agents are required to disclose evidence concerning sensitive matters for the business. This could make Norwegian agents less attractive, compared with competitors from countries with witness exemption. The Government will examine the need and opportunities for witness exemption for patent agents.

A number of countries require authorisation in order to exercise the role of patent agent. The establishment of a public authorisation system in Norway was reviewed in 1979. The conclusion was that the introduction of such a system would not serve competition. The Government believes it is time to re-examine this issue.

Better information concerning registration of trademarks, business names and domain names

Businesses must currently apply for trademarks, business names and domain names under three different systems. This is both demanding and confusing.

The Ministry of Trade and Industry will therefore ask NIPO, in collaboration with Norid2 and the Brønnøysund Register Centre3, to assess how information and assistance can make it clearer and simpler for businesses to register business names, trademarks and domain names.

Digitalisation and copyright

The fast-paced adoption of ICT in all areas of society warrants regulations that both facilitate innovation and safeguard intellectual property rights. The EU has initiated major efforts in the copyright area as part of the Digital Agenda for Europe.4 The Government will closely monitor the ongoing development of copyright regulations in the EU, e.g. in connection with amending the Copyright Act.

Introduction of the Paediatric Regulation

Medicines that have not been tested for use by children may constitute a health risk. In 2006, the EU adopted a regulation concerning medicines for children. The regulations have not yet been incorporated into the EEA Agreement, and have not been introduced in Norwegian law.5 This is due to the negotiations between EFTA and the EU regarding which adaptations are to be made when incorporating the regulations in the EEA Agreement have not been concluded. The Government is placing high priority to resolving this matter.

Access to the EU’s community systems for intellectual property rights

The EU’s community systems for intellectual property rights allow an applicant to achieve protection in all EU countries through a single application. There have long been such community systems for trademarks and designs. In December 2012, agreement was reached on such a system for patents as well. The system covers 25 of the 27 EU countries, and is scheduled to enter into force in the spring of 2014. The European Patent Office shall issue such patents, which will cover the 25 countries as a whole. The European patent is not the same as the current EPO patent, which is issued by the European Patent Office, and will not replace this system. Further study is therefore necessary to determine how these two systems will function together.

Norway is not a member of the EU and cannot, e.g. for constitutional reasons, become part of the EU’s community systems for trademarks, designs and patents. Nevertheless, it follows from the basic international regulations that all systems must be open to all applicants, and that all applicants must be treated equally, regardless of nationality. Norwegian applicants can therefore use the EU’s community systems on par with applicants residing in the EU, as well as applicants from other global locations.

The Government has noted that the EU is working on implementing European community systems in the industrial property rights area in order to provide more cost-effective systems and a well-functioning internal market.

Market for intellectual property rights

Well-functioning markets for trading intellectual property rights may contribute to innovation and technology transfer. There have been developments internationally where marketplaces have been established for trading intellectual property rights, initiated by private or public players. The Government believes that facilitation is required in order to ensure that the Norwegian business sector has adequate knowledge concerning such trading, thus allowing them to participate in such activities. It is up to the business sector itself to establish potential marketplaces for intellectual property rights. The Government will monitor this development.

Summary

So that Norway can accede to international agreements and update regulations and systems, the Government will:

• Submit for consultation a proposal concerning Norway’s accession to the London Agreement, e.g. a bill to allow the submission of national patent applications to NIPO in English,

• Assess the establishment of private, commercial patent litigation insurance for intellectual property in the Norwegian market,

• Consider the need and opportunities for witness exemption for patent agents and the introduction of a Norwegian authorisation system,

• Request that NIPO, in consultation with Norid and the Brønnøysund Register Centre, assess how information and assistance can make it clearer and simpler for businesses to register business names, trademarks and domain names.

Improve training in intellectual property rights

The Government believes that currently available education programmes do not reflect the increased significance of intellectual assets and intellectual property rights. Training in intellectual property rights must be improved throughout the course of study, as well as through relevant continuing education programmes.

Primary, lower and upper secondary education

Children and young people are the professionals of tomorrow. At an early age, they are faced with the need to administer both their own and others’ intellectual property rights, for example through the use of digital media and entrepreneurship in school. Early education in how to handle intellectual property rights among children and young people will therefore make them more able to handle these requirements. The Government believes it is important that training is tailormade for children and young people.

Higher education

The business sector, research communities and public sector have an increasing need for candidates skilled within intellectual property rights. Institutions of higher education require expertise in order to teach intellectual property rights, as well as to balance the consideration for disseminating knowledge against the consideration for protecting the intellectual property rights derived from assets based on the research. At the same time, the public policy agencies require expertise in order to provide sound assistance and consider applications from businesses.

The Government is of the opinion that the increased significance of intellectual property rights for business development and value creation should be reflected in improved education programmes at Norwegian universities and university colleges, and the Government wants to facilitate the development of a broad range of education programmes in the field.

A large number of PhD candidates may be involved in innovations where the handling of intellectual property rights is critical. The Government believes it is important for PhD candidates to be trained in intellectual property rights. The Ministry of Trade and Industry will therefore ask the Research Council of Norway to ensure that PhD programmes financed with funds from the Ministry of Trade and Industry include training in intellectual property rights when this is appropriate.

The Government is of the opinion that sound professional and research communities are a precondition for good education programmes, throughout the entire range of legal, technological, economic and administrative fields. This requires a certain number of professorships and research fellowships in the field. The Ministry of Trade and Industry will therefore consider the establishment of endowed professorships and associated fellowship positions in the field of intellectual property rights.

Continuing education

Continuing education programmes within intellectual property rights are scattered. Certain universities offer programmes covering basic issues within the fields of law and science. The Government will consider further development of these programmes in collaboration with the business sector, research communities and other relevant stakeholders.

Summary

In order to improve training in intellectual property rights, the Government will:

• Facilitate to ensure that participants in entrepreneurship programmes gain greater expertise and awareness concerning intellectual property rights,

• Request that NIPO enter into a dialogue with relevant players in the education system with a view toward stimulating interest in intellectual property rights in primary, lower and upper secondary education,

• Request that the Research Council of Norway endeavour to ensure that certain relevant PhD programmes include training in intellectual property rights,

• Consider the establishment of endowed professorships and associated fellowship positions in the field of intellectual property rights.

Further development of the Norwegian Industrial Property Office (NIPO)

NIPO is a policy instrument aimed at promoting innovation. Through its administration and dissemination of knowledge, NIPO is part of the Norwegian innovation system. A well-functioning intellectual property regime and a well-functioning authority are important preconditions in order for businesses to base their innovative activities in Norway.

In Norway, small and medium sized businesses account for more than 40 per cent of patent applications to NIPO. Such businesses value linguistic, cultural and geographic proximity to expertise and assistance. NIPO therefore plays a very important role for small and medium-sized businesses, as the instance that examines applications and as a centre of expertise.

Efficient examination of applications

Efficient examination of applications with correct quality is the foundation of NIPO’s activities. It also follows from Norway’s international obligations. The Office should continue to benchmark itself against best practice in order to learn and develop its own expertise.

Reducing backlogs

In 2010, there were 5.2 million patent applications waiting to be examined at the world’s patent offices.6 The actual examination process has also become more labour intensive in that the applications have become more complex. A total of about 16 500 applications were received by NIPO in 2012. Of these, about 1 500 were patent applications, 14 000 trademark applications and 1 000 design applications.

Reducing backlogs has gained considerable global attention, and substantial resources have been expended to reduce the scope. This forces the individual patent offices to streamline the processing of applications and cooperate on the re-use of examination results. In 2009, NIPO prepared a backlog reduction plan, the goal of which is for the average examination time for patent applications to be around three years by the end of 2017.

The Government expects NIPO to follow up on its backlog reduction plan.

EPO membership

As a result of Norway’s EPO membership, NIPO has become part of the European patent system. The Office works closely with the EPO and has access to a number of resources, such as ICT systems, databases, technical collaboration and education through the European Patent Academy.

The Governments emphasises that NIPO utilises the opportunities provided by the EPO membership, and actively represents Norway in the Administrative Council and subordinate committees.

The Nordic Patent Institute

For NIPO, Norway’s EPO membership resulted in a considerable decline in the number of foreign patent applications. This entailed a reduction in both the scope of qualifying work, as well as income.

In order to offset NIPO’s reduction in applications and qualifying work, Norway participated in the establishment of the Nordic Patent Institute (NPI) in 2008. NPI is a collaboration between Denmark, Iceland and Norway which aims to help maintain an adequate level of income and qualifying work for patent authorities in the three countries. Membership in the NPI shall contribute toward allowing the NIPO to provide examination of patent applications and professional expertise in all technical areas, and be a fully investigative patent office.

The Nordic Patent Institute is approved as a PCT authority, and primarily provides examination of international applications and preliminary patentability assessments. These services can currently be used by applicants from Iceland, Denmark, Norway and Sweden. NPI also provides patent examination services to businesses outside the member countries, but currently this is primarily limited to the US and certain European countries. The objective is for NPI activities to amount to a greater share of NIPO’s future activities in the patent area.

The Government wants NPI to succeed, thus maintaining NIPO’s broad expertise in all fields of technology.

Patent examination in a global perspective

In the patent area, the examination of applications must be harmonised with the EPO, within the framework of prevailing Norwegian law. This means that an application must be examined in the same manner by NIPO as by the European Patent Office, which requires active efforts in order to maintain the Office’s expertise and ensure that decisions are in line with prevailing regulations and practice. In order for NIPO to operate comfortably inside the EPO system, it requires technological and patent expertise, even within fields of technology where the number of applications are low. This is expertise which, in turn, will benefit the Norwegian business sector.

Some businesses desire the examination of patents in certain important foreign markets to take place as expediently as possible. On a global scale, a number of agreements have been entered into between various patent offices, the so-called Patent Prosecution Highway (PPH). NIPO currently has PPH agreements with the US (USPTO) and Japan (JPO). The Government welcomes these agreements that enables Norwegian businesses to clarify patent rights in foreign markets as quickly as possible.

In order to develop its application examination process, NIPO shall:

• Streamline its examination process through the development of technological tools, improved internal organisation, increased re-use of relevant examination materials and increased cooperation with other patent offices.

• Actively follow and monitor technological developments and analyse consequences for the composition of future patentapplications. The Office must be especially attentive to developing its own technological expertise in areas that are under development. This will enable the Office to properly handle new technological areas.

• Consider how to learn from best practice at other patent offices. The Office should further develop its collaboration with among others EPO, OHIM, other European patent offices, USPTO, JPO, other public authorities in Norway and abroad.

• Continue to harmonise regulations and practice, providing users with confidence that they will receive the same treatment regardless of where the applications are examined.

NIPO as a centre of expertise

The Government believes that NIPO must provide expertise for businesses, public authorities, policy instrument players, as well as research and education institutions. NIPO shall also reach out to other stakeholders and user groups that may be expected to benefit from a more awareness concerning industrial property rights.

In order for NIPO to develop its role as a centre of expertise, the Government will ask NIPO to:

• Stimulate the business sector to increase focus on the use of intellectual property rights in their own business and commercialisation strategies.

• Cooperate closely with Innovation Norway in order to develop a better information and assistance service linked to intellectual property rights.

NIPO as a resource in policy development

The policy and regulations concerning intellectual property rights are continuously changing globally, which has vast implications for the development of innovation, research and industrial/commercial policy. The Government expects NIPO, along with the other policy implementation agencies, to advise the authorities in the development of policy in this area. NIPO shall also be a skills resource and sparring partner for public authorities in the preparation of free trade agreements and research agreements.

Businesses interact with various parts of the policy implementation agencies, depending on their needs. NIPO shall be a driving force in ensuring that other policy implementation agencies include intellectual property perspectives in the provision of their services.

The Government will ask NIPO to:

• Be an advisor and support for public authorities in negotiations on international agreements.

• Be a driving force vis-à-vis other policy implementation agencies in order to include intellectual property perspectives in the provision of their services.

Develop the overall range of assistance provided within intellectual property rights

Businesses and research institutions are requesting more advice on strategic administration of intellectual property rights. Parts of the business sector perceive the range of services as fragmented, inaccessible and somewhat lacking. Less than half of businesses know who to contact.

Develop the overall range of assistance provided by the policy implementation instruments

The need for greater expertise in the administration of intellectual property rights raises the bar for the policy implementation agencies.

The policy implementation agencies are intended to complement each other within a total value chain from idea to market, both nationally and internationally. There is currently no single player that can provide information and assistance concerning the entire spectrum of intellectual property rights, from copyright to patents, to all relevant target groups. An easily accessible and centralised information and assistance service can both provide better services to users and contribute toward better utilisation of resources and knowledge communities.

The Government aims to facilitate strengthened and improved assistance and guidance. The Ministry of Trade and Industry will ask NIPO and Innovation Norway to collaborate on establishing an assistance and advisory service for small and medium sized businesses.

The Government wants a modern and harmonised range of policy instruments and will therefore identify the need and potential solutions of a centralised information and assistance service for intellectual property rights.

Norwegian businesses intending to do business in international markets must be aware of the opportunities and challenges inherent in intellectual property rights. Better services aimed at businesses with an international focus may make it neccesary to reinforce assistance resources in Innovation Norway with more international expertise.

The Government will contribute toward developing Innovation Norway’s assistance role vis-à-vis Norwegian businesses concerning commercial exploitation of intellectual property rights in relevant foreign markets.

Administering intellectual property rights derived from publicly funded research

The Government expects the research and educational institutions to work actively to ensure that research results benefit society at large, either in the form of business development or better public services. Research and development spawns new knowledge and innovation. Greater focus on innovation in the public sector in recent years has strengthened both the innovation and commercialisation efforts at research institutions and in the business sector.

The amendments to the Act relating to universities and university colleges and the Employee Invention Act have stimulated a greater awareness and more systematic administration of intellectual property rights in the research communities. The number of patents registered by universities and the commercialisation players has increased in recent years and the commercialisation offices have developed into strong expert communities within intellectual property rights, as well as an important resource for the research institutions.

The Government believes that all research that is publicly funded in whole or in part, shall as a matter of principle be openly accessible. The Research Council of Norway established its own policy for intellectual property rights in 2008. The Government expects the Research Council to continue its work toward the best possible utilisation of Norwegian intellectual property rights. The Government also expects that those who receive public funding, have had a conscious approach to and good practice for administering their own intellectual property rights.

The Government will consider the preparation of guidelines for both research institutions and businesses. The guidelines will contribute toward sound administration of intellectual property rights derived from publicly funded research at the research institution, as well as intellectual assets in collaboration projects between research institutions and businesses.

Arenas for shared learning

Large businesses, major research institutions and the patent agent industry possess unique expertise concerning strategic and practical use of intellectual property rights from which smaller players can benefit.

The Government wants to stimulate experienced users of intellectual property rights from the business sector to share their experiences with others by establishing arenas for start-ups and small and medium sized businesses. There is also a need for arenas where universities, university colleges and commercialisation participants can learn from each other. Such an arena can help streamline the sharing of information and knowledge between the participants and provide an important contribution toward building a shared culture for knowledge transfer and commercialisation in the university and university college sector, as well as in the health institutions.

Intellectual property rights are becoming increasingly important for standardisation work. Norwegian experts participate in global standardisation work and it is important that the national experts have up-to-date expertise concerning the development of and interaction between intellectual property rights and standardisation.

The Government sees the need for Standards Norway7 to increase its own expertise concerning intellectual property rights. Such knowledge is also relevant for others, for example the agencies responsible for policy instruments. The Norwegian Industrial Property Office should gather the relevant instituions to raise awareness concerning the link between intellectual property rights and standardisation.

Summary

The Government wants to develop better assistance services concerning intellectual property rights by:

• Establishing an assistance and advisory service for small and medium-sized businesses.

• Clarifying needs in more detail and identifying potential solutions for a centralised information and assistance service for intellectual property rights.

• Contribute to the development of Innovation Norway’s guidance for Norwegian businesses concerning intellectual property rights in particular relevant foreign markets and request Innovation Norway to assess how to design an improved assistance service.

• Considering the development of guidelines for administering intellectual property rights from publicly funded research.

• Establish a range of arenas for shared learning and sharing experiences.

Combat piracy and counterfeiting

Since 2007, the Norwegian Customs has intensified its efforts to stop imports of pirated goods to Norway. In 2010, the Norwegian Customs received earmarked funds to increase staff and to hire a dedicated coordinator for intellectual property rights. The customs authorities follow up both international trends and regulatory developments through the World Customs Organization. The customs authorities also strive to improve their inspections, intelligence and reporting.

The Government sees the need for regulatory reforms and measures to support information and public opinion efforts and to facilitate legal solutions that are attractive. Piracy and counterfeiting are international challenges that requires coordinated efforts through international cooperation.

The Government has submitted a proposal which will strengthen the means of enforcement in industrial property legislation 8 and has proposed amendments to the Copyright Act that strengthen the opportunities of rights holders to enforce copyright infringement that takes place on the Internet. 9

Greater awareness, information and understanding are weapons to combat piracy and counterfeiting. There is currently no single source to access information. Many are still unsure about what is allowed, and what is not. The Government sees the need to establish a website that makes it simple for individuals, businesses, citizens, authorities and the media to locate information on piracy and counterfeiting. NIPO will now establish a website.

The Government will establish a regulatory partnership to strengthen the systematic exchange of information between ministries, subordinate agencies and other stakeholders. This could form the basis for campaigns and other measures against piracy and counterfeiting. The Ministry of Trade and Industry will request NIPO to continue its work on a government network dealing with piracy and counterfeiting.

The European Observatory on Infringements of Intellectual Property Rights aims to collect information on both the scope and most effective means of combatting piracy and counterfeiting. In 2011, Norway joined as an observer. The Government wants Norway to take an active role in the European Commission’s work against piracy. The Government will also monitor regulatory developments in the EU.

Summary

The Government aims to reduce the extent of piracy and counterfeiting by:

• Strengthening the regulations for enforcing rights pursuant to the Copyright Act through an amendment of this Act.

• Continuing efforts to establish a website with information on piracy and counterfeiting, and establishing an appropriate government partnership.

• Continuing its support of the EU’s anti-piracy efforts.

Improve the knowledge base for policy development

Policy development requires a sound knowledge base. This means having good knowledge of the connection between efforts in one area and their impact on value creation. As regards intellectual property rights, there is sufficient knowledge concerning the number of rights that are applied for, while there is more limited knowledge concerning the impact the intellectual property rights will have on value creation in the individual business, sector or the country as a whole.

Basic data and intellectual property registers

In a policy perspective, the strategic position of businesses regarding how they can realise the value creation potential of their innovations is just as interesting as the number of registrations. Public authorities will therefore request economic analyses that link data for intellectual property rights with other data sources. This may improve knowledge on the links between intellectual property rights, innovation and value creation.

In Norway the register of rights is only marginally linked to other types of registers. Different methods for mapping industries and technologies across registers also complicates a comparison of various statistics and register links. This makes it difficult to investigate the links between research, innovation and intellectual property rights.

The basic commercialisation statistics and the number of rights derived from publicly financed research are lacking. There is a need for improved data on intellectual property rights at universities, university colleges, institutes and health institutions.

Investigations of existing intellectual property rights within various areas of technology can to a greater degree become part of the knowledge base through the development of research programmes by the Research Council of Norway. The Government will therefore ask NIPO and the Research Council to carry out a pilot project that maps the IPR landscape as part of the knowledge base when new initiatives are established by the Research Council.

There are no regular public surveys of the level of IPR knowledge and awareness in Norway, nor are there surveys of Norway compared to other countries.

Analysis of the link between intellectual property rights and value creation

The Norwegian business sector is successfull despite low level of awareness and limited use of intellectual property rights. For policy purposes, it is neccesary to get a better understanding of the significance of the intellectual property rights for competitiveness and value creation in Norwegian businesses, and whether the number of rights secured by Norwegian businesses is at a satisfactory level.

The Ministry of Trade and Industry is involved in different research projects that examine innovation and innovation policy, including intellectual property rights. This also includes work under the European Patent Office (EPO), World Intellectual Property Organization (WIPO), the EU and OECD. The Government aims to ensure that all Norwegians benefit from analysis work carried out in these organisations.

Input seminars and conferences are important in order to gather experience and knowledge from the business sector and others involved. As part of following up this White paper, the Minister of Trade and Industry will regularly host conferences to discuss issues concerning intellectual property assets and rights in the Norwegian innovation system.

Summary

The Government believes there is a need for better basic data and a register of intellectual property rights. The Government will ask NIPO to:

• Contribute toward improved basic data and take the initiative for regular surveys of the level of knowledge and awareness concerning intellectual property rights in relevant target groups and coordinate this with other existing statistics.

From a policy development perspective the Government sees the need to gain a better understanding of the role played by intellectual property rights for value creation and growth, and will therefore:

• Follow up and participate in analysis work in international organisations and use this in national policy development.

• Assess how analyses of the link between intellectual property rights and value creation can be included in developing the knowledge base.

• Regularly host conferences to discuss issues concerning intellectual property rights in the Norwegian innovation system.