Wednesday, 19 May 2010

Crocs and disclosure of a design

I will have to keep a closer eye on things like decisions of the boards of appeal in Alicante, if I am to keep my podcasts up to date - because they come up with some interesting stuff, even if it doesn't have the authority of the General Court's views. The latest edition of Alicante News just popped into my inbox, closely followed by Dave Musker's post on the Class 99 blog on an appeal decision reported in the latter - R 9/2008-3 of 26 March 2010. So as you see it's taken a while to come to my attention, though if Dave has only just seen it too I don't feel too bad.
It reads like the sort of scenario an examiner might invent: products exhibited in the US, sold to the public and featured on a website, all this more than a year before the priority date (and therefore unable to benefit from the absurdly long 12-month grace period in EC design law). Did these activities amount to anticipation? The Board said:
The test is whether the sales could have reasonably become known to the relevant circles in the Community. And the answer is, in the Board's estimation, in the affirmative. The launch of a new product on the marketplace always attracts attention from the public at large, the press and the business circles. This sort of news circulates instantly and easily in the Internet era.
So (as Dave Musker observes) our design law tends towards being an absolute novelty regime. To be fair, it was always clear that only very obscure disclosures would be taken to have escaped the attention of the relevant circles, but even since the time when the wording of the directive and regulation were being debated  things have changed dramatically - the Internet, as the board observes, makes this information much more available, and much more speedily, than would have been the case a decade or so ago.

No comments:


blogger templates | Make Money Online