CLASS 99
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THURSDAY, 22 OCTOBER 2009
Another brick in the wall?
Alicante News reports an invalidation case (ICD 5353 on the validity of RCD 150917-0004) which is interesting from two angles. Firstly, it considers whether a brick is a "component part" in the sense of the Regulation and concludes, quite rightly I think, that it is not because it cannot be assembled and disassembled - it is stuck in place by mortar. The consequence is that the design is not automatically invalid under CDR Article 4 because not visible in normal use.
That may come as a surprise to some, possibly including the French courts which have held the contrary in at least one case on building products, but is in accordance with the view that this is an anti-spare-parts provision rather than a principle of substantive design law.
Secondly, and more contentiously for me, it concludes that a disclosure by availability on the file of a German Utility Model is one which could "reasonably have become known in the normal course of business to the circles specialised in the sector concerned". I personally have no problem with the view that published patents and designs would come to the attention of the circles concerned - if they don't pay attention to IP, they certainly ought to so so. But I don't think it is normal commercial practice to watch the unpublished files of applications - I recall many years back that this is how Derwent got started, in the days when the Belgians used to lay patents open early, but there was a market for their product precisely because individual companies didn't do it themselves. Posted by: David Musker @ 17.37
Tags: brick, not visible, OHIM, publication, spare parts,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA53
Another brick in the wall?
That may come as a surprise to some, possibly including the French courts which have held the contrary in at least one case on building products, but is in accordance with the view that this is an anti-spare-parts provision rather than a principle of substantive design law.
Secondly, and more contentiously for me, it concludes that a disclosure by availability on the file of a German Utility Model is one which could "reasonably have become known in the normal course of business to the circles specialised in the sector concerned". I personally have no problem with the view that published patents and designs would come to the attention of the circles concerned - if they don't pay attention to IP, they certainly ought to so so. But I don't think it is normal commercial practice to watch the unpublished files of applications - I recall many years back that this is how Derwent got started, in the days when the Belgians used to lay patents open early, but there was a market for their product precisely because individual companies didn't do it themselves. Posted by: David Musker @ 17.37
Tags: brick, not visible, OHIM, publication, spare parts,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA53
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