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Administrative review - lifelong opposition period for patents

The period of opposition against a granted patent in Norway is nine months. However, after the expiration of the opposition period, a lifelong opportunity for third parties to request an administrative review of a granted patent before the Norwegian Industrial Property Office - NIPO exists. A request for an administrative review may be requested for any Norwegian patent whether granted by NIPO or EP patents validated in Norway.
Anyone may file a request for an administrative review of a Norwegian patent. The decision is made by the NIPO. This means that the patentee or any third party may request such a review in the whole lifespan of a patent. A request for review may even be filed after the patent has terminated, provided that the requesting party has a legal interest in having this matter reviewed.
A request for an administrative review may only be filed based on lack of novelty and inventive step, for not being a patentable invention as such and for being an invention excluded from grant. These exceptions are laid out in the Norwegian Patents Act Section 1 and 2, and are very similar to Article 52 and 53 EPC. Thus the grounds for an administrative review are more limited than for an opposition.
The administrative review may result in invalidation of the patent in full or in part. If the patent is invalidated in part, the patent may only be maintained in amended form if the patent holder agrees with the amendments proposed by the NIPO. If the patentee does not agree with the amendments, the patent shall be declared invalid. A decision to declare a patent fully or partly invalid will take effect from the filing date.
Both the requesting third party and the patentee are parties to the review proceedings. However, the NIPO is not bound by the grounds presented by the requesting third party, and may also consider any other prior art documents that have come to their attention since grant; e.g. a third party observation filed during the review proceedings.
The administrative review process has shown to be simple, efficient and less costly than filing a request for invalidation of a patent before the courts of law. When considering filing oppositions or initiating invalidation procedures against Norwegian patents, it should therefore be carefully considered if a request for administrative review may be filed instead.

By Kristine Rekdal published in Managing Intellectual Property Magazine.

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