To decide whether the exception for inventions made in the employee's free time was applicable, the court had to decide when in time the invention was made.
The Norwegian Patent Act does not directly specify when a patentable invention is made. The court stated that a patentable invention is made when the material requirements to novelty and non-obviousness under the Norwegian Patent Act Section 2 are met. It is not necessary for formal requirements for patentability, such as enablement, to be met for a patentable invention to be deemed as made.
Inventions will often be deemed to have been made prior to completion of full-scale trials or design of a prototype . However, solutions that are wholly unfounded speculations do not qualify as inventions.
In the assessment of when the invention was made, the court stated that the employee, who was the plaintiff claiming the rights to the invention, had the burden of proof and that the standard of proof is solely the preponderance of probability. In this regard, the court emphasized that the employee could not be penalised for not formally claiming the rights to the invention earlier than November 2021, after he described the invention to a colleague in October 2017 and to a director in September 2019, or for not dating his notes from the development work.