Our thanks to Dr Anna Tischner of Jagiellonian University Cracow, Poland, for a summary in English of the most recent General Court case T-83/11 and T-84/11 (joined judgments - as so often, the judgment is available in just about every other language).
The cases concerned two designs for radiators (RCDs 000593959-0001 and 000593959-0002) , apparently of the vertical type, owned by Antrax IT and opposed by The Heating Company (THC). The invalidation was based on lack of individual character over The Heating Company's own International Design registration DM/060899.
The first instance invalidation decisions were ICD000005312 and ICD000005320, and the appeals were R 1451/2009-3 and R 1452/2009-3, all in Italian only. According to Anna, the General Court repeated the rule they had laid out in the Communication Equipment case T 153/08 that the informed user is unable to distinguish, beyond the experience gained by using the product concerned, the aspects of the appearance of the product which are dictated by the product’s technical function from those which are arbitrary.
Moreover, the Court clearly distinguished between the degree of freedom of the designer (which is not limited by the crowded prior art but legal or technical constraints) and the "crowded field" (referred to I think as "saturation") as a factor influencing the perception of the design by the informed user (its overall impression), especially its sensitivity to certain changes in proportions of the subject designs. It appears that one of the issues was a "de facto" radiator pipe diameter, which was not a technical or regulatory constraint and hence not a "design freedom" issue.
Since "saturation" had been raised in argument but the Board of Appeal did not deal explicitly with it in its decision, the decision was overturned.
The Heating Company have some previous form in this area, having successfully opposed other Italian applicants using the same prior art in invalidity case ICD000002913 (in English) and appeal R 976/2007-3 (in Italian, English summary here) - the "crowded field" test played quite a part in the latter decision - as well as appeal R 592/2007-3 (in Italian, English summary here).
If anyone who can read one of the published versions would care to comment further we'd be glad to know more about what looks to be quite an important decision.
I'm a little concerned about the creeping importance of the informed user. On my reading of the Regulation and the Directive, the informed user has only one role - the overall impressions formed on the informed user in the test for individual character (infringement or validity).
ReplyDeleteThe informed user is irrelevant to novelty, design freedom, solely dictated by technical function, contrary to public morality, and various other tests in the legislation. The High Court in London has got it right - the tribunal interprets the design, "removes" anything solely dictated by technical function, if necessary assesses novelty on an invalidity claim, determines the level of design freedom, and only then gets the informed user out of bed for the assessment of overall impression.