Linked by Thom Holwerda on Thu 11th Aug 2011 09:22 UTC
Legal Earlier this week, we were introduced to a new concept in intellectual property law: the European 'Community Design'. The Community Design is a sort of trademark on design, and sits halfway between a trademark and a patent. I decided to investigate what, exactly, the laws and regulations around Community Designs are, and what I found was shocking. Think the USPTO is bad? Wait until you learn about the Community Design.
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Thank you
by Rooki on Thu 11th Aug 2011 09:39 UTC
Rooki
Member since:
2011-05-12

I just wanted to thank you Thom for doing the research on this and bringing this to light. Hopefully this will get enough exposure and be fixed.

Edited 2011-08-11 09:39 UTC

Reply Score: 13

RE: Thank you
by Thom_Holwerda on Thu 11th Aug 2011 09:42 UTC in reply to "Thank you"
Thom_Holwerda Member since:
2005-06-29

Once this article has seen some exposure (at least here on OSNews), and spelling has been checked and possible wrong facts are corrected, I will contact several of my elected officials in both Europe and the Lower House with this information. It might not do much, but at least I tried.

Reply Score: 13

RE[2]: Thank you
by ephracis on Thu 11th Aug 2011 10:05 UTC in reply to "RE: Thank you"
ephracis Member since:
2007-09-23

Great idea! I will do the same. I felt safe from those stupid software patents here in Sweden but now this? I bet you there's someone, or will be, whom have at least one Community Design looking like my Stoffi application. Wtf?! How am I supposed to continue creating software when I have all these obstacles preventing me from creating even the most basic stuff?

I need my own damn country. Time to colonize the moon! Who's with me?

Reply Score: 7

RE[3]: Thank you
by Lennie on Thu 11th Aug 2011 11:00 UTC in reply to "RE[2]: Thank you"
Lennie Member since:
2007-09-22

I hear Sealand is for sale, but it isn't cheap and it isn't recognised by many countries.

Although I'm sure colonizing the moon isn't cheap either. ;-)

Edited 2011-08-11 11:00 UTC

Reply Score: 4

RE[3]: Thank you
by ephracis on Thu 11th Aug 2011 11:34 UTC in reply to "RE[2]: Thank you"
ephracis Member since:
2007-09-23

I have just sent a letter to my officials and I anticipate their answer. I am also planning on writing to one of the larger news papers here in Sweden to shed some light on this problem.

This seriously bothers me deeply, as I have plans on starting a company in the IT-business. But with a minefield like this the outlook it starting to look a lot dimmer.

Does anyone know how different EU states can handle this issue? Do we need to get this all the way up to the EU officials in order to change it?

Reply Score: 5

RE: Thank you
by AdamW on Thu 11th Aug 2011 17:14 UTC in reply to "Thank you"
AdamW Member since:
2005-07-06

+1.

Also thanks for the credit on the RCD in the current suit being filed in 2004. No, wait, you didn't give me one. oh well. ;)

There are no iPad 2 RCDs listed yet, but I suspect simply because they're still in process: from the workflow I found on the site, it looks like currently-under-review RCDs aren't posted. You can search in reverse date order, and if you do that, the most recent major sets of RCDs are iPhone 4 and iPad 1.

Reply Score: 2

RE[2]: Thank you
by JAlexoid on Sun 14th Aug 2011 20:53 UTC in reply to "RE: Thank you"
JAlexoid Member since:
2009-05-19

I don't believe they filed for iPad2 RCD. Moslty because the Smart Cover rip-off RCD is already there.

Reply Score: 2

Comment by cyrilleberger
by cyrilleberger on Thu 11th Aug 2011 09:44 UTC
cyrilleberger
Member since:
2006-02-01

It is interesting as you mention two contradictory problems to the community design: it costs money and there is no prior art search. What cost money when filling a patent or a design is the prior art search, so if you want improvement on that aspect, the cost will increase, which would have a higher impact on small companies, but a limited impact on bigger problem.

The real problem is not in how community designed are filled, but how the judiciary process works. Since the community design is so weakly granted, it should not be possible for a court to take a decision on it (even a preliminary one) without hearing from both side. In which case, Samsung could have tried to show that apple was not that likely to win the trial, and possibly prevent the preliminary injunction.

Reply Score: 7

RE: Comment by cyrilleberger
by RWeede on Fri 12th Aug 2011 10:05 UTC in reply to "Comment by cyrilleberger"
RWeede Member since:
2011-08-12

Actually, I would not say that the idea of design patents (what a misleading name -- it has nothing to do with patents) is bad in itself. They have existed for quite some time and have never been especially problematic from a standpoint of fair competition, for one simple reason: Judges have usually been VERY reluctant to issue preliminary decisions based on design rights BECAUSE they are granted automatically on registration without any search for prior art.

The normal use for such design patents would be to use them for protection against 100%-identical-looking design rip-offs of your products.

That is why I do not understand the decision in the Apple/Samsung case at all (though I have to admit that I have not read it yet). It is HIGHLY unusual to issue such a far-reaching decision based on a Community Design which has never been challenged in court before.

Reply Score: 2

RE[2]: Comment by cyrilleberger
by JAlexoid on Sun 14th Aug 2011 20:57 UTC in reply to "RE: Comment by cyrilleberger"
JAlexoid Member since:
2009-05-19

Why? In Germany they seem to do it all the time. Shoot first ask questions later.
I bet the situation is due to the car manufacturers interest in restricting other car manufacturers from using their designs very fast.

(Rage! At the pedantic "bastards". Thanks for the wonderful cars and engineering though)

Reply Score: 2

the Australian system
by unclefester on Thu 11th Aug 2011 10:54 UTC
unclefester
Member since:
2007-01-13

In Australia there is no prior art requirement. We have a first to lodge patent system. Whoever lodges the patent first is the owner even if it was invented 100 years ago. In Australia you initially apply for a patent pending. This protects your idea until the product can be commercialised.

Australian patent applications are examined and lodged by non-government patent attorneys who are experts in both intellectual property law and a specific technical discipline. A patent attorney typically has an advanced degree in science or engineering as well as a law degree.

Most patent attorneys specialise in one discipline such as mechanical engineering or pharmaceuticals.

Edited 2011-08-11 10:55 UTC

Reply Score: 4

RE: the Australian system
by przemo_li on Fri 12th Aug 2011 07:37 UTC in reply to "the Australian system"
przemo_li Member since:
2010-06-01

And we all know, that in Australia you can patent wheel.
(Yes this 2oooy old wheel).

I wonder how you can be innovative, or sustain IT development.

When anyone can just "steal" patents for what you develop. NOT that software patents should be granted. But system you describe is disaster.

Do you know what to do to invalidate patent? Or what conditions must be met for that?

Reply Score: 1

RE: the Australian system
by raboof on Fri 12th Aug 2011 16:15 UTC in reply to "the Australian system"
raboof Member since:
2005-07-24

In Australia there is no prior art requirement. We have a 'first to lodge' patent system.

Uh, no you don't? Australia requires patents to be 'novel' at the time of submission. To determine whether the invention is 'novel', a prior art search (called 'examination') is done. The difference is, in Australia you can apply for and get the patent without doing the examination. If you want to hold up your patent in court, though, the examination will have to happen, and if prior art is found, the patent is invalidated.

There might not be a prior art requirement for getting a patent, but there is one for enforcing it.

In Australia you initially apply for a patent pending. This protects your idea until the product can be commercialised.

'Patent pending' simply means the procedure for getting a patent for this product has been started. It does not give any protection in itself, but *if* the patent is later granted, you can sue anyone who used the idea since the moment you started the process (called the 'priority date').

Edited 2011-08-12 16:16 UTC

Reply Score: 4

RE: the Australian system
by kristoph on Fri 12th Aug 2011 22:05 UTC in reply to "the Australian system"
kristoph Member since:
2006-01-01

Umm, no. The Australian system is actually much more rational the most. It acknowledges that the patent examiner has no hope of actually understanding most patents and so it will grant them without a thorough search of prior art. However, the patent can be invalidated in court through prior art and this happens reasonably often.

It's also not as expensive to get a patent in Australia and because judges care more about fairness then due process is cheaper to defend against a patent.

Also the weather is great, the girls are really nice looking, and as long as you don't live in Sydney it's reasonably cheap. So, yeah, mate, you have nothing to complain about.

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Reply Score: 3

Well that's it.
by Morgan on Thu 11th Aug 2011 11:36 UTC
Morgan
Member since:
2005-06-29

That's the nail in the coffin of any association I will have with Apple*. I know, any number of other big companies would probably do the same (I'm looking at you, Sony). But the fact that they would jump at the chance to be the first to deliver such a cheap shot speaks volumes.

As to the issue at hand...how the hell is this even possible? How did the European citizens allow this state of disarray to come to pass? You know, I should go and file a bunch of these "Community Designs" (a misnomer if I ever heard one). When one of the big companies tries to sell their vaguely similar product in the EU, I can stand up and say to the European people: "Look, I could stop that company dead in their tracks and cost them millions in lost revenue and wasted marketing costs, perhaps even bankrupting them. But I'd rather expose this fraud for what it is. Don't let this idiocy continue to erode the free market when the entire world is already suffering economically!"

But I'd probably be assassinated or at least kidnapped and forced to see the error of my ways before I could make it to a podium. I'm not a paranoid person but far worse has happened to those who cross megacorporations while trying to do the right thing.



*I'm not changing my opinion of MacOS and OS X; I still think they are great OSes. But from this point forward I will not buy another Apple device or otherwise send them any of my money. They join Sony on my short list of boycotted asshat companies. I know the effect of that is infinitesimal in the grand scheme, but it's my only way of protesting that will have any impact on my life and serve to remind me why I don't associate with them anymore.

Reply Score: 6

RE: Well that's it.
by pysiak on Thu 11th Aug 2011 11:39 UTC in reply to "Well that's it."
pysiak Member since:
2008-01-01

Infinitesimal if you do it. A bit bigger if you discourage others. I mean bad news fly fast, don't they?

Reply Score: 1

RE[2]: Well that's it.
by Morgan on Thu 11th Aug 2011 11:57 UTC in reply to "RE: Well that's it."
Morgan Member since:
2005-06-29

That's something I've thought of as well. In the recent past I've actually recommended Macintosh computers to those who seem to be suited for it. I have been hesitant to do so since Lion came out, as it is the beginning of the end of OS X (in my opinion). Now I have a concrete reason to say "stay away", but it's inevitable that when one starts discussing patents and trademarks and shady business practices, the subject's eyes gloss over and they start looking for an excuse to exit the conversation.

And that very ambivalence towards the legal situation is probably what Apple is banking on these days. They must know just how dirty and morally bankrupt their actions are, but they also know the average potential Apple customer is either oblivious or uncaring of the issues. They just want their shiny iPad or Macbook, and let the courts deal with the details.

That said, geek that I am I have a lot of geeky friends who would listen and understand. Most of those, however, already don't like Apple so it would only be another notch on their board of animosity.

So, next time I'm asked for a product recommendation and the person specifically mentions Apple, I can honestly say I don't care for the company or their products anymore. If I'm pushed for a reason, I can highlight the situation and if I have an eager audience I'll continue from there.

Reply Score: 4

RE: Well that's it.
by Athlander on Thu 11th Aug 2011 11:53 UTC in reply to "Well that's it."
Athlander Member since:
2008-03-10


As to the issue at hand...how the hell is this even possible? How did the European citizens allow this state of disarray to come to pass?


It's because European citizens have no say in what the EU does.

Reply Score: 4

RE[2]: Well that's it.
by Morgan on Thu 11th Aug 2011 11:59 UTC in reply to "RE: Well that's it."
Morgan Member since:
2005-06-29

I find that both sad and alarming. I thought the EU was supposed to be "better" than the US? If the people don't control the government (not saying we truly do here, but it's the principle) then throw out the government and start again!

Reply Score: 2

RE[3]: Well that's it.
by Thom_Holwerda on Thu 11th Aug 2011 12:01 UTC in reply to "RE[2]: Well that's it."
Thom_Holwerda Member since:
2005-06-29

I find that both sad and alarming. I thought the EU was supposed to be "better" than the US? If the people don't control the government (not saying we truly do here, but it's the principle) then throw out the government and start again!


Well, this issue doesn't concern terrorism, Islam, celebrities, or violent crime. You can hardly blame the people for not being interested if it's not about those things.

/sarcasm

Reply Score: 2

RE[4]: Well that's it.
by Morgan on Thu 11th Aug 2011 12:08 UTC in reply to "RE[3]: Well that's it."
Morgan Member since:
2005-06-29

Believe me, you don't need the sarcasm tag there. It's the same way here, along with "OMG think of the children!" issues and so-called reality TV.

In fact, I think the only way you'd spark a riot or revolt in this country is if the Jersey Shore and American Idol were canceled in the same week.

Reply Score: 4

RE[4]: Well that's it.
by steogede2 on Tue 16th Aug 2011 23:56 UTC in reply to "RE[3]: Well that's it."
steogede2 Member since:
2007-08-17

"I find that both sad and alarming. I thought the EU was supposed to be "better" than the US? If the people don't control the government (not saying we truly do here, but it's the principle) then throw out the government and start again!


Well, this issue doesn't concern terrorism, Islam, celebrities, or violent crime. You can hardly blame the people for not being interested if it's not about those things.

/sarcasm
"

Even if the people were interested, if the popular press isn't, they aren't going to even be aware of it. If it isn't about one of the topics you mentioned, the popular press aren't going to be interested. It's a vicious circle.

Reply Score: 1

RE[3]: Well that's it.
by Athlander on Thu 11th Aug 2011 20:02 UTC in reply to "RE[2]: Well that's it."
Athlander Member since:
2008-03-10

I find that both sad and alarming. I thought the EU was supposed to be "better" than the US? If the people don't control the government (not saying we truly do here, but it's the principle) then throw out the government and start again!


That's the problem. The European Parliament, the European Commission, the Council of the European Union and the European Council sit on top of the governments. So while a national government represents the people of the nation and, in theory at least, is accountable to the people and can be removed by the people, in practice the EU organisations represent the governments, rather than the people. The process of government in the EU is conducted behind closed doors.

This makes the EU unaccountable to the citizens of Europe.

Reply Score: 2

RE[4]: Well that's it.
by Neolander on Thu 11th Aug 2011 20:57 UTC in reply to "RE[3]: Well that's it."
Neolander Member since:
2010-03-08

I think that the European Parliament is elected through the European elections. I agree that the rest is chosen through overly indirect means, though.

Reply Score: 2

RE[5]: Well that's it.
by Athlander on Thu 11th Aug 2011 21:25 UTC in reply to "RE[4]: Well that's it."
Athlander Member since:
2008-03-10

I think that the European Parliament is elected through the European elections. I agree that the rest is chosen through overly indirect means, though.


Yes, ministers to the European Parliament are elected but like many elected bodies, there's little control over what they get up to between elections.

Reply Score: 2

RE[6]: Well that's it.
by Neolander on Fri 12th Aug 2011 05:50 UTC in reply to "RE[5]: Well that's it."
Neolander Member since:
2010-03-08

Heh, that's why elections are relatively frequent ;)

Reply Score: 2

RE[4]: Well that's it.
by przemo_li on Fri 12th Aug 2011 07:45 UTC in reply to "RE[3]: Well that's it."
przemo_li Member since:
2010-06-01

The European Parliament is accountable, and in one case broad disagreement on one case, forced it to do right thing. However other structures are often beyond reach of citizens.

However we (as EU citizens) can influence a bit. Email addresses of all parliamentarians are publicly available :>

Reply Score: 2

RE[5]: Well that's it.
by JAlexoid on Sun 14th Aug 2011 21:05 UTC in reply to "RE[4]: Well that's it."
JAlexoid Member since:
2009-05-19

Hell, I could even knock on the door of an MEP that lives not far from me...
People in smaller countries and countries with low power distance index have the benefit of influencing their parliamentarians more directly...

Reply Score: 2

RE: Well that's it.
by Bending Unit on Thu 11th Aug 2011 18:56 UTC in reply to "Well that's it."
Bending Unit Member since:
2005-07-06

How did the European citizens allow this state of disarray to come to pass?


This was the the first time I have ever heard about it and I spend way too much time reading online news.

Reply Score: 7

my ideas
by unclefester on Thu 11th Aug 2011 13:22 UTC
unclefester
Member since:
2007-01-13

Maybe I should register generic designs for pizzas, icecream cones and hamburgers.

Edited 2011-08-11 13:23 UTC

Reply Score: 4

RE: my ideas
by double_s on Thu 11th Aug 2011 14:58 UTC in reply to "my ideas"
double_s Member since:
2011-08-11

I am affraid you're too late with that.

Someone filed that already as a Design and as a figurative/3D/hologram Trademark.

Reply Score: 1

mantrik00
Member since:
2011-07-06

A lot of these intellectual property laws are framed by hectic/clandestine corporate lobbying. Therefore, it's no surprise that they serve the interests of large corporations. Thanks to a strong opposition by leftist legislators in India, nothing like this exists and software patents per se are not allowed. Also, minor variations of extant inventions cannot be patented.

Reply Score: 3

unclefester Member since:
2007-01-13

India also produces very cheap generic pharmaceuticals for the same reasons,

Reply Score: 2

przemo_li Member since:
2010-06-01

Geeee EU is mostly on the left side, and we have this "IP" burden here because of them. (Poland my country is one of ee 2-3 countries with "right" gov?)

Oh, and I approve cheap medicines. Also disbanding software patents in every scrape of the land on earth.

Edited 2011-08-12 07:49 UTC

Reply Score: 1

It's not broken
by Yamin on Thu 11th Aug 2011 15:31 UTC
Yamin
Member since:
2006-01-10

Broken implies it is not doing what it is meant to do.

These laws are not meant to encourage innovation or anything. They're meant to create jobs for lawyers and bureaucracy and established players.

They're doing exactly what they are intended to do.

You might as well say the drug war has failed. It has not. It has served its purpose of employing police officers, prison guards, lawyers...

Reply Score: 3

Wow
by Pro-Competition on Thu 11th Aug 2011 18:39 UTC
Pro-Competition
Member since:
2007-08-20

I don't even know what to say. The truth really is stranger than fiction - I couldn't make this stuff up if I tried!

Reply Score: 2

win 8 tablets
by fran on Thu 11th Aug 2011 18:57 UTC
fran
Member since:
2010-08-06

Wonder what this will mean for Windows 8 tablets.
What will Microsoft tell their partners when they want to develop tablets for the European market.
And if Apple let those slide how will this biasness affect other cases.

Edited 2011-08-11 18:59 UTC

Reply Score: 2

Thank you
by CavemanGR on Thu 11th Aug 2011 19:02 UTC
CavemanGR
Member since:
2011-08-11

I am a fanatic reader of osnews for many years (propably since 2002) but never had thought of registering till now. It is the most shocking article I read on osnews so far.

I want to thank you for your research on that matter, I shall contact european parliament members that I personally know and inform them about that very specific important exploitation.

Thank you.
A Greek reader (since the old times with the boxy design of the main page)

Reply Score: 2

Thom, share this with Samsung lawyers
by ozonehole on Fri 12th Aug 2011 02:07 UTC
ozonehole
Member since:
2006-01-07

I know that Samsung lawyers are not idiots and will explore every legal avenue open to them. However, Thom, you might want to send them a link to this article (assuming you can figure out how to contact them). The reason why is not so much to help Samsung, but because perhaps we could jointly use their considerable resources to get help get these obnoxious "community design" rules removed from the books or at least modified.

We open-source geeks may have the moral high ground on our side, but Samsung has the money, influence and lobbying power to get things done. This is one of those rare cases where even those who are reflexively anti-corporate may have reason to work with a corporation to get the law changed.

Keep in mind the old axiom, "The enemy of my enemy is my friend." Even if it's only a temporary alliance.

Edited 2011-08-12 02:10 UTC

Reply Score: 2

AdamW Member since:
2005-07-06

yeah...uh...one South Korean corporation is not in a position to change EU law. Really.

Reply Score: 2

Neolander Member since:
2010-03-08

I wish it was the case, but many laws are here to show that governments are not immune to corporate pressure. DMCA, ACTA, DADVSI, and now this Community Design...

Reply Score: 2

AdamW Member since:
2005-07-06

corporate pressure, sure. chaebol pressure? not so much.

Reply Score: 2

przemo_li Member since:
2010-06-01

Lobbbing is the world that is missing from your dictionary. Repair that!

And it may not be direct lobbing (however EU lobbing is enourmous), but lobbing public is also good, and Samsung can make "waves" in public opinion, if it choose.

But Samsung is here not for changing law. Its for making moneys, so distroying CD many not be its goal.

Reply Score: 1

JLF65 Member since:
2005-07-06

Some folks would like to "lob" them, but I do think you meant "lobbying". ;)

Reply Score: 2

It's all the same
by Tuishimi on Fri 12th Aug 2011 16:20 UTC
Tuishimi
Member since:
2005-07-06

People are people where ever you go.
And since people are the same, bureaucracy is the same.

Reply Score: 3

europe is not what it seems
by levente on Fri 12th Aug 2011 22:25 UTC
levente
Member since:
2010-05-23

i sincerly do not mean to troll, and am probably offtopic, but since this is about europe, i ask you to take a critical approach at why things are as they are: there are other reasons, than enlightenment, for a group fo people to seem "civilised"... not all forces, by far, in Europe want EU to be the pillars of freedom, democracy, and reason, whatever they are...

i wish you to understand this, this is not a joke:
western europe is not like the USA, with wast technological, military, scientific heritage...
the russian speaking countries and other fallen communists are not even considierd part of modern europe; their space programs and other science and achievements do not concern us...
in our eyes western europe is the best because: we dispise adolf, we prevailed the communists, and have lots of now long dead poets and composers.
i repeat, this is not a joke: there is no scinece or technology involved in our selfimage: CERN, ESS and others are just prestige, the public does not even know or care what they are for...

as an example, you have no idea about the badly ESS was publicly recieved in sweden... even the fact that it is to be built on a piece of soil aimed for agriculture was first page news, not to mention the fact that it costs sweden money... the only reason for the topic being settled is people are not used to (and hence forget easely about) science, and the politicoans said "it will make us look good"... there was no public joy over the opportunity to contribute to needed and good science...

- "Communism" made dictatorship look bad in Europe - it is one of the main argument for democracy in the mouths of the masses... - this is unfortunate, because to be well informed and educated, for the purpose of putting down a "realistic" vote, does not seem to be a duty, or even encouraged... vote with your heart or for your wallet, do not ask too many questions, is the fashion now...
- Adolf made nationalism and race bilology look bad - there is no untainted argument in europe to dislike the neighbor or minority... but many would...
- a rare minority of the politicians have scientist/engineering background, most are lawyers, economist, or hippies...

if not for adolf and the bad example "communism" made, I do not think we would have even this degree of democracy and tolerance, that we enjoy now...

look at the government of italy, france, or england...
one seems to be a mafioso, the other racist, the third unhealthily conservative...

Edited 2011-08-12 22:27 UTC

Reply Score: 1

RE: europe is not what it seems
by Tuishimi on Sat 13th Aug 2011 06:26 UTC in reply to "europe is not what it seems"
Tuishimi Member since:
2005-07-06


look at the government of italy, france, or england...
one seems to be a mafioso, the other racist, the third unhealthily conservative...


Whaaaaaaaat?! I was following along nicely until this tripe erupted from your thoughts.

Reply Score: 2

RE[2]: europe is not what it seems
by levente on Sat 13th Aug 2011 10:23 UTC in reply to "RE: europe is not what it seems"
levente Member since:
2010-05-23

observe, i used the word "seems", my impressions come from the news in general, but search for it:
"berlusconi mafia ties"
"sarkozy racist comments"

my comments on englands government i have to stand for without references, but on the other hand, the net is filled with info on the countries political history...

Reply Score: 1

RE[3]: europe is not what it seems
by _txf_ on Sun 14th Aug 2011 20:27 UTC in reply to "RE[2]: europe is not what it seems"
_txf_ Member since:
2008-03-17

my comments on englands government i have to stand for without references, but on the other hand, the net is filled with info on the countries political history...


As opposed to the US, which conservative to the point of insanity?

Reply Score: 2

JAlexoid Member since:
2009-05-19

Oh please.... Americans are mostly conservative.
Even the progressive liberals seem quite conservative.

Reply Score: 2

RE[2]: europe is not what it seems
by JAlexoid on Sun 14th Aug 2011 21:16 UTC in reply to "RE: europe is not what it seems"
JAlexoid Member since:
2009-05-19

Have you been to Italy? Or maybe you have relatives there?(People that don't hide their view of their own country from you, because you're foreign)

Berlusconi is "perceived" in Italy as a person with ties to the mafia and Vatican is not far from there also.

Reply Score: 2

Comments from an IP professional
by IPprofessional on Sat 13th Aug 2011 01:31 UTC
IPprofessional
Member since:
2011-08-13

Firstly congratulations on a well researched article. Most the comment on RCDs over the last few days has been far less informed.

It might have been helpful to consult an expert (and I don’t necessarily mean a lawyer but perhaps a Patent Office/OHIM official, academic or even a designer who uses the system) but its refreshing to read an article written entirely from a layman’s point of you.

There are some parts I probably agree with:

Firstly having an IP right that is an exclusive/”monopoly” right but is granted without examination has a bad feel about it for many of the reasons you state and more. On the upside it does mean less lawyer involvement is needed so individuals can get something useful out of it without too much cost. Previous design registration system have tried to examine but to no great effect. To be effective Design Registries would need to be good at searching. Whereas most inventions eventually find there way into patent applications most designs are never filed so the existing registrations aren’t that useful, most databases are indexed by words not pictures and even with Google goggles etc the only way to really search the internet is with words not images. Accordingly even if there was searching, invalidity of granted designs would still be common place (much more so than for patents). Still being able to get a registration for a knowingly invalid design and being able to threaten people who didn’t know it existed does seem odd even if wont be enforced.

Secondly I question OHIM’s desire in regard to both trade marks and designs to cut administrative costs in order to reduce fees to be as low as possible. If the fees are too low the system might get too cluttered. Your view is of course that is too cluttered. It may though be that this fear is unwarranted- I have yet to find a field in which it has become a problem- and the “design freedom” aspect of the regulation may help. Features in which there is little design freedom, and in which applicants might attempt to register most possible designs, have little protection whilst if there is a lot of design freedom it is likely impossible for any applicants to file enough applications to block off most options. Copying old designs that are public domains is of course always permissible. Further case law currently interprets designs pretty narrowly

Where I think that you may have slightly the wrong impression or I simply disagree with your conclusions are on the following two points:

a. Preliminary injunctions. I’m not sure that the lack of examination creates a great problem with these.

I don’t know much about German case law on preliminary injunctions so I will sick to England and Wales.

IP preliminary injunctions (PIs) are not generally decided on the merits of the case ie. who is likely to win provided that the claimant has at least a possibility of winning. The full hearing on a permanent injunction is decided on the merits and there is no point deciding the same thing twice. They are given (or not) based on a balance of harm. If the PI is not given and the defendant is latter found to infringe, the defendant will have to be damages for each sale made (or any claimant sales lost) between PI application and final verdict. If the PI is given and the defendant is later found not to infringe or the IP right is invalid then the claimant must pay the defendant for every sale that was lost because of the IP. Therefore the winning side gets their money whatever. The PI is therefore primary determined on which side is more likely to suffer irreparable harm that can not easily be compensated by damages if the PI decision is wrong. Its often decided to maintain the status quo until the final hearing- e.g if the product is selling at full capacity allow it to continue, if it has yet to launch stop the launch.

There is also a case law which says that if defendant should have seen the litigation coming and is relying on the IP right being invalid (as opposed to them not infringing it even if it is valid) then they should have “cleared the way” by revoking the right before launch. This is the case for generic companies who take some years to produce a copy of a blockbuster drug with a famous patent. It could though apply to designs in the name of a the market leader if there is some gap between the market leader establishing their strong sales and the defendants launch.

Secondly designs are really nothing like trademarks. If anything they are halfway between copyright and patents.

Trade marks help prevent consumer confusion, aid them to get the “same again”/give them a weak guarantee and help companies protect their goodwill/reputation. Provided they continue to be used and renewed they can be in force forever and certain marks like the Bass red triangle are very old indeed.

Copyright protects the creations of artists and authors and patent protect the work of inventors. They are both time limited and are not concerned with helping consumer in any direct short term way.

Designs are also time limited. They are intended to protect the creations of industrial designer and not to prevent consumer confusion. You can file shape works as trade marks if you want that (hard work actually- Tobelerone has a TM for their shape but many others have failed).


Copyright protects against copying of any important part of an artistic work (even if very short) and not just the work as a whole. A rap song that sounds nothing like classical music will still infringe i ti samples a catchy short hook from a recent classical piece. Similarly design law (which goes back to at least 1840 and is mandated by the Paris Convention and TRIPS) has always been intended to protect aspects and parts of a designers work not just complete products. A new product that looks radically different from an existing one may still be held to infringe if it incoprated an important or striking part of the design of the existing product.

With unregistered design rights (which the UK has had for some time and require proof of copying) this is achieved by the claimant stating which parts of a design have been copied. This may relate to aspects- e.g. the distinctive shape has been copied even though the decoration and colours haven’t. With previous versions of UK registered design law it was achieved by requiring the applicant to state whether the design filing was in relation to shape/configuration or ornamentation and to point out the parts of the design which were believed to have novelty.

With the RCD system they have taken a simple approach and said that rather than have accompanying words you simply put what you want o protect in the drawings. If you put in the product as a whole including photos then that is all that is protected- you probably cant argue that one part infringes if another part is so different to the equivalent in the RCD that the product as whole creates a different overall impression. If you wish to protect compnonets or aspects of the design then you only put those in. If you don’t consider the colour important you don’t file in colour.

I believe iterative filing is entirely in line with the intentions of the system because:

a. You are meant be able to protect different parts/aspects of a product.

b. An industrial designer whether freelance or at company is meant to be able to protect his portfolio regardless of whether any company or his employers are yet convinced to commit to manufacturing them all.

Edited 2011-08-13 01:32 UTC

Reply Score: 2

RE: Comments from an IP professional
by AdamW on Sat 13th Aug 2011 07:40 UTC in reply to "Comments from an IP professional"
AdamW Member since:
2005-07-06

"I don’t know much about German case law on preliminary injunctions so I will sick to England and Wales. "

That's sort of the problem. You want to stick to England and Wales because that's what you know about; fine. But Apple didn't have to. The RCD system is EU-wide, which allowed Apple to go jurisdiction shopping and find the country with the preliminary injunction system most suited to their purposes - just as U.S. patent aggressors tend to go to East Texas. You may well be entirely correct about English preliminary injunctions, but so what? The case wasn't filed in England.

Reply Score: 2

IPprofessional Member since:
2011-08-13

I think you missed my point, possibly I communicated it badly in a long post written late at night.

I was not saying that its hard to get prelim injunctions in England so don't worry, I was saying that since English prelim injunctions don't normally depend much on the merits of the case the lack of evaluation of validity before a PI is given is not the departure from normal justice that it first seems.

Reply Score: 1

kristoph Member since:
2006-01-01

IP preliminary injunctions (PIs) are not generally decided on the merits of the case


Do you know this is different in the German system or are you just mindlessly raging?

Reply Score: 2

IPprofessional Member since:
2011-08-13

Im not interested in the specifics of the Apple-Samsung case (Id go elsewhere for that). I was trying to add further context to Thom's impressive but IMO slightly flawed attempt at assessing the CD system as a whole. For those reasons England is as relevant as Germany to that discussion (well maybe slightly less as Germany is the more popular venue for litigation).

My understanding of Thom's view is that being able to get a PI on presumed validity of the design is unfair and unusual since unlike a patent the registration office have not considered validity. My point was that for at least the major IP court of the EU that I know well the merits of arguments regarding both validity and non-infringment (the latter of which has never been previously considered for any IP right)aren't big factors in determining PIs and therefore the lack of examination of CRDs is not as relevant to the PI issue as Thom may have believed.

To be honest the PI point was very much secondary to the point I was making about the intents and purposes of the system. PIs are a pretty rare niche thing and in most cases can be compensated for when they are given wrongly.

Edited 2011-08-13 20:32 UTC

Reply Score: 1

AdamW Member since:
2005-07-06

You don't really seem to engage with the fundamental nature of the situation, though. Your argument seems to be 'hey, this is normal, so what's the problem?', which is fine as far as it goes, but it _can_ be the case that what's 'normal' in a given legal system is not particularly equitable. The RCD system, at least to laypeople, sure looks like that.

Reply Score: 2

kristoph Member since:
2006-01-01

Awesome! You should perhaps write an entire article on this for OSNews!

Reply Score: 2

v LOL. Samsung deceived you all
by Babi Asu on Sat 13th Aug 2011 12:22 UTC
Thom_Holwerda Member since:
2005-06-29

Oh god learn to read. They did not deceive anyone, ffs.

As is common practice if you expect a preliminary injunction in Germany, you file a document with some procedural objections in every Bundesland ('state'). Considering Germany is the prime place to get EU-wide injunctions, it makes sense to do so if you are in a global legal battle. It's a common-sense precaution.

This IN NO WAY contradicts Samsung's statement that they were not notified - because when Apple filed the injunction, Samsung was indeed NOT NOTIFIED. They did not lie - they told the truth, without even spinning it. The fact that they filed the document does not mean they knew about the injunction, much in the same way that posting a "Do not park here" sign does not automatically mean you know someone is going to park there on Sunday, 23 June, 2012.

Come on people, learn to fcuking read.

Edited 2011-08-13 12:42 UTC

Reply Score: 3

kristoph Member since:
2006-01-01

They may not have outright lied but their statement clearly implied they had no knowledge of this proceeding at all and that's just not true.

It's not like the German court in question invented this process or that it was arcane or whatever (you yourself state this particular court handles many such cases).

Apple followed the law, Samsung followed the law, and the German court sided with Apple. You may not agree with this decision or the law in general but the law is the law.

It's lame PR move by Samsung and it's not going to endear them to the court in question by any means so it's a pretty bad move on their part.

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

They may not have outright lied but their statement clearly implied they had no knowledge of this proceeding at all and that's just not true.


They had no knowledge of the injunction being filed. There is no evidence that they did. Just because they took a preventive measure which is entirely logical considering the anti-competitive tactics Apple has been going for does NOT mean they knew about the injunction. Anticipating a legal action might come != knowing about that specific legal action - just like how insuring your car does not mean you know about that specific accident you're going to have in 3 years' time.

Reply Score: 2

Morgan Member since:
2005-06-29

just like how insuring your car does not mean you know about that specific accident you're going to have in 3 years' time.


That's pretty much how I'm reading it. It's pretty common here in the States for a corporate law firm to take such preventive action, especially in the realm of patents and sensitive corporate info. I figured that was common knowledge; it's certainly not illegal or immoral.

Reply Score: 2

JAlexoid Member since:
2009-05-19

They may not have outright lied but their statement clearly implied they had no knowledge of this proceeding at all and that's just not true.


Now imagine if your insurance company took that same stance in a case of not paying out your claim. Because you had bought the insurance means you had knowledge of an event that would result in a claim. You would probably be all in rage...
In fact, many insurance claims have been disputed based on those grounds. Taking out an insurance policy right before some event.

Reply Score: 2

PIs in Germany
by IPprofessional on Sat 13th Aug 2011 21:04 UTC
IPprofessional
Member since:
2011-08-13

I dont have any special insight on these and have just used Google like anyone else could.

Here's some info from the reliable German IP firm Grunecker

http://www.grunecker.com/download/publications/injunc.pdf

It suggests that contrary to this article's assumption (which was entirely logical) PIs re actually pretty hard to obtain for Community Designs and the validity is not generally assumed.

I should mention that PIs in Germany appear to be very different from England (which I discussed above) in that merits are generally very important. It looks to be almost impossible to get a PI in Germany for a very complex IP case though Design cases are rarely complex.

Edited 2011-08-13 21:04 UTC

Reply Score: 1

RE: PIs in Germany
by IPprofessional on Sat 13th Aug 2011 22:12 UTC in reply to "PIs in Germany"
IPprofessional Member since:
2011-08-13

The info in the link above might be out of date in regard to RCDs given this case http://www.justiz.nrw.de/nrwe/olgs/duesseldorf/j2008/I_20_U_154_08u...

Reply Score: 1

Great article
by Alex Forster on Sun 14th Aug 2011 02:04 UTC
Alex Forster
Member since:
2005-08-12

This s fantastic original research. Good job Thom.

Reply Score: 2

A small explanation needed
by JAlexoid on Sun 14th Aug 2011 20:43 UTC
JAlexoid
Member since:
2009-05-19

So what is going on here is that companies can simply select the most favourable court system - the German one, in this case - file their injunction request there


It's not exactly like that overall. There are rules to where the lawsuit has to be filed. Since Samsung has a lot of official subsidiaries in different EU countries, Apple could chose to file almost anywhere.
Per 6/2002/EC Art 79, 44/2001/EC Art 2(1) and Brussels Convention 1968 Art 2 - Apple could only file in countries that have subsidiaries.
The benefit of this is that the defending party is not obliged to go to another country(part of a country, like East TX) to defend itself.

So, the filing process is broken, the court procedure is broken - and that isn't even all.

The court procedure is very much the sanest that could have been devised. Germany has an issue with heavy-handed judicial system though, when it comes to soft issues.

Now imagine Apple copying the design of a small company (which they have done so many times before - see Konfabulator or Delicious Library). This company has a Community Design, and tries to get an injunction, and gets it.

Not necessary. Apple would have to file against me in my own country(mandatory) and not all countries have judges as heavy handed as Germany does.


And, of course, the small company has to pay Apple damages for the period the injunction was active.

Absolutely incorrect statement. That is only true if the court decides that way and that depends on the country. However a successful defence against Apple is free to the defendant, as per the conventions and regulations cited above, Apple would foot the bill for your defence(without any options).

In short:
- The court system in EU is fragmented and presents a almost all legal system in the world today
- OHIM only formally registers the designs, but CD only requires public disclosure. The registration only helps, but is not mandatory.
- Trademarks are also in the same category and handled by the same authority. The registration only helps, but is not mandatory.
- German courts are pedantic and heavy handed. Even Florian Mueller indirectly admitted to it, since he had an injunction taken out in Germany on a completely unrelated to CD issue.

PS: Thom, I don't know how you managed to get so little results but I get "1430 results in 15 pages in 4.07 seconds"
http://esearch.oami.europa.eu/copla/advanced#/designs/1/search&Appl...

With the most ridiculous being the incase ripoffs:
http://esearch.oami.europa.eu/copla/design/data/001266233-0001
http://esearch.oami.europa.eu/copla/design/data/001266308-0001
http://esearch.oami.europa.eu/copla/design/data/001266274-0001

PPS: Opinions expressed in my post are not only mine(as IANAL), but by people with degrees in International Law, International IP law and practising IP lawyers from Italy, Finland and Baltic States.

Edited 2011-08-14 20:46 UTC

Reply Score: 3