The Court of Appeal's decision was based on a written and simplified process. The central question before the Committee was whether this constituted a procedural error. Neurim argued that the question concerning the Patent's inventive merit is based on a professional judgment. Thus, the Court of Appeal should have had access to independent expertise when deciding on the case. The Committee was divided into a majority and a minority. The majority concluded the Court of Appeal's decision to proceed with a written and simplified process did not constitute a procedural error.
Patent disputes are of a technical nature. The core question in the case was whether the Patent fulfilled the requirement for inventive merit in the Patents Act section 2. An invention must "differ essentially" from "what was known before the filing date of the patent application" to have inventive merit. The assessment shall be based on the assessment of how obvious the invention is for a qualified professional with insight into the technical field of the invention. Therefore, most patent cases are decided with expert co-judges. This may also be necessary to ensure proper case processing according to the requirements set out in the Disputes Act section 1-1. Further, relevant case law states that the courts should show restraint in the judicial review of patent cases. The majority noted that the assumption that expert co-judges or court-appointed experts will be appointed in such cases cannot be an exception-free rule. The need for professional expertise may vary in patent cases, and it must be explicitly considered in the individual case.
The majority conclusion in the case was based on an overall assessment of different factors in the case. Firstly, the District Court had two expert co-judges at the request of Orifarm. According to the court records, Neurim did not find it necessary to appoint expert co-judges. Further, the District Court's proceedings were based on five statements from professors and expert witnesses who testified during the main hearing. Finally, the Court of Appeal had access to the written statements from the two expert witnesses in the District Court, and the District Court's decision was unanimous and unambiguous.
Further, the majority pointed to the fact the validity of the Patent did not raise questions of principle. Additionally, the parties did not submit new evidence in the appeal to the Court of Appeal, and the Patent's expiry date was close. The fact that EPO had granted a patent for the same invention and that the High Court of Justice in England and Wales has maintained a parallel European patent did not cause the refusal to be unjustifiable. Patent decisions differ from jurisdiction to jurisdiction. According to the majority, the question regarding the inventive merit was not as distinctly technical. Thus, it was possible to assess it properly without the assistance of expert co-judges or expert witnesses.
On the other hand, the minority concluded that the Court of Appeal's decision must be revoked due to the lack of access to independent experts. The minority argued that the patent dispute required professionals to have insight into the subjects of medicine and/or pharmacy and that the Court of Appeal was not provided with such expert competence. Further, the District Court had not assessed whether it was "clear" that the Norwegian Board of Appeal for Industrial Property Rights grant of the Patent was invalid. Additionally, the minority stated that courts in this area must show restraint in their review of patent cases. Based on this, the minority noted that refusal of cases concerning a patent's validity must have a particularly justifiable basis. In this case, the Norwegian Board of Appeal for Industrial Property Right's decision was with a dissenting opinion. Further, EPO had granted the patent based law that is close to harmonized with the Patent Act. These circumstances combined, seen in connection with the legal and evidentiary issues that arise in the case, led the minority to conclude the refusal of the appeal submitted based on a written and simplified treatment constituted a procedural error.