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"From IP to NP": design law on trial
Seasoned European design practitioner and Class 99 weblog founder David Musker is on the Design Law panel which forms part of the programme for a forthcoming AIPPI conference, "From IP to NP". This conference takes place next month (10 and 11 November, to be precise, at the Dan Panorama Conference Center, Tel-Aviv, Israel, illustrated on the right). The "NP" in the conference title refers to "net profit", and much of the programme is taken up with the commercialisation of intellectual assets.
The design part of the programme is however slightly different. Israel's design law is pretty ancient and is in the process of being replaced. As Howard Poliner (head of the IP Division of the Israel Ministry of Justice) explains:
This blogger, who will be covering the conference, wonders whether David will be able to "sell" post-Directive British design law, or indeed fully-fledged European design law, to an interested but critical customer in the form of an innovation- and design-oriented jurisdiction that is looking for a solution to its design law problems and can choose between existing models (eg Europe, the United States) or simply create its own."In Israel we're finally on the cusp of replacing the Mandate period designs law. That statute is derived from the UK designs statute of 1907. Currently, we're grappling with the notion of whether Israel should continue a conceptual linkage with UK design law or go off on our own and create something (hopefully) clearer, albeit unique.
The primary reasons for continuing to maintain a conceptual link with UK design law is because it is familiar (at least until the EU directive), approximation may have trade benefits, UK design law has become part of the local legal heritage and -- given that Israeli courts often view foreign case law as binding precedent in Israel and Israeli statutory law merely as guiding (a peculiar Israeli judicial pathology and/or vote of no confidence in the local legislative system) -- there may be some utility, if not predictability, in continuing to maintain a conceptual link with UK design law, particularly if Israeli judges will over time import it anyway.
On the other hand, post-directive UK design law strikes me as completely unpredictable and lacking in clear definition and in particular concepts such as "novelty", "individual character", "informed user", if not the definition of "design" itself. Indeed, with regard to "design" the relationship of the decoration to the substrate is not clear, sometimes varying between a decoration which is separable from the substrate and viewed as having an existence of its own, to an inseparable format where the design is the overall combination of the design and substrate as viewed as a whole. I can only imagine that, where the design is 3D, there is a greater likelihood that the decoration will merge with the substrate, but where the decoration is of a 2D nature there will be less of a merger as between substrate and design with the concomitant effect of a broader monopoly/prior art scope. In any event, I'm not convinced that in 100 years of UK design law, including under the directive, that there has been a lot of real substantive change. Sure the scope of the monopoly changes from generation to generation (eg sometimes limited to a class; or to an article; or, now to possibly article in any class) but the bottom line still seems to be a subjective, unpredictable "is it different" type determination".
Tags: AIPPI conference, From IP to NP,
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