Novelty in design

from Wikipedia, the free encyclopedia

In addition to individual character, novelty is the most important prerequisite for the protectability of a design (registered design). It is true that the novelty of the subject-matter of the application also represents the most important protection requirement for the two so-called technical property rights, patent and utility model; see. Section 1 (1) and Section 3 of the Patent Act or Section 1 (1) and Section 3 (1) of the GebrMG. At the same time, there are not inconsiderable differences between the opposing concepts of novelty of patent and utility model on the one hand and registered design on the other.

The legal situation according to the GeschmMG old version (old version)

The concept of novelty explained in the following was basically valid until the German legislature entered into force of the Design Reform Act or the new version of the GeschmMG (now: DesignG) on June 1, 2004, which implemented Directive 98/71 EC into national law.

The concept of novelty as such

While the concept of novelty is legally defined in utility model law - the subject matter of a utility model is new if it does not belong to the state of the art, Section 3 (1) sentence 1 of the GebrMG - there was no corresponding legal definition in conventional design law. Since the "Rüschenhaube" decision, it has been undisputed for decades that a pattern must then be viewed as new "if the design features that justify its peculiarity are not known to domestic experts at the time of registration, or if the designs available in the relevant or neighboring industrial areas are reasonably observed could be known ". There was agreement with the concept of novelty in utility model law insofar as the design was also - at least essentially - an objective novelty. However, this was relativized in design law and thus subjectified. Logically, subjectivity is a subspecies of relativity. Because the "Rüschenhaube" decision was based on the knowledge of the domestic specialist groups under "reasonable consideration of the designs available in the relevant or neighboring industrial areas". It should be noted, however, that the concept of novelty according to the above definition also included such designs as damaging to novelty that were or could be known to domestic specialist circles from abroad. In this respect, there is a not inconsiderable difference to the novelty of the utility model, which - in the case of obvious prior use - can only be questioned by acts of prior use that have taken place in Germany.

The grace period

According to § 7 a GeschmMG old version, a pre-publication of a product was not taken into account when assessing its novelty if the pre-publication had taken place within six months before the date relevant for the seniority of the application and had been carried out by the applicant or his legal successor . This restriction of the concept of novelty relevant for the assessment of protectability essentially corresponded to the regulation applicable to utility models in Section 3 (1) sentence 3 of the GebrMG.

The new design law (design law)

The concept of novelty as such

Legal definition

The GeschmMG nF (DesignG), which came into force on June 1, 2004 according to Art identical pattern has been disclosed ", Section 2 (2) sentence 1 DesignG. "Samples are considered to be identical if their characteristics differ only in insignificant details", sentence 2 of the aforementioned regulation. Article 4 of Directive 98/71 EC is implemented in national law with Section 2 (2) DesignG. It is true that Article 2 (2) DesignG lacks the reference - contained in Article 4 of the Directive - that instead of the filing date, the priority date may also be decisive for the novelty criterion. However, Section 13 (2) DesignG makes it clear that if a foreign priority is effectively claimed (filing date of an identical design in a foreign country, see Section 14 DesignG) or an exhibition priority (date of the presentation of the relevant sample at a recognized exhibition, cf. 15 DesignG) the priority date replaces the filing date. (According to the previous design law, a corresponding regulation resulted from the law on the protection of designs at exhibitions (Exhibition Law)). According to the above definition of the novelty of a design, which is now applicable, only what is "disclosed" is decisive. § 5 sentence 1 1st half-sentence (HS) DesignG contains a legal definition of the term "disclosure", according to which - in principle - a sample is disclosed "if it has been made known, exhibited, used in circulation or made available to the public in any other way. .. "§ 5 sentence 1 2nd HS DesignG relativizes this definition of" disclosure "both regionally and subjectively, in that a pattern that has actually been made available to the public is nevertheless not disclosed as (in the legal sense) had to apply if the disclosure "could not have been known in the normal course of business by those skilled in the sector in the Community before the filing date of the design". While the old design law was based on the knowledge of domestic expert groups, what should now be decisive is what "the ... expert groups active in the Community (i.e. in the EC)" could be aware of ".

The thought of reasonableness

As far as the notion of reasonableness emphasized in the "Rüschenhaube" decision of the BGH is concerned, this is not expressly required in §§ 2, Paragraphs 2 and 5, Clause 1 of the 1st HS DesignG, which now standardize the concept of novelty. Nevertheless, he is but because of the - in the form of an objection formulated ( "... unless, that this does not become known to the circles specialized in the sector concerned in the ordinary course of business operating in the Community before the filing of the pattern could .") - § 5 Sentence 1 2. HS DesignG at least indicated.

Summary

In summary, it can be stated that the new design law - and this in the literal implementation of Article 6 (1) sentence 1 of Directive 98/71 EC - adheres to regional and subjective elements of novelty, both restrictions, however, compared to the strict regulation in this regard previous design law ("Rüschenhaube" decision of the BGH) have been significantly weakened.

The fiction of § 5 sentence 2 DesignG

In addition, the new design law includes a relativization of the concept of novelty, which is missing in the GeschmMG old version, namely in the form of § 5 sentence 2 DesignG, according to which a pattern is not "considered" if it is known to a third party only under the express or tacit condition of confidentiality have been done. Such a breach of the legal definition of the concept of novelty (see above) appears to be entirely reasonable: in future, it will relieve the design applicant or owner of the judicial assertion of recourse claims against the unfaithful contractual partner - which is regularly necessary in such cases under the old law .

The novelty of components according to § 4 DesignG

A tightening of the novelty requirement - which is also not provided for in the old design law - but which only applies to the protection of parts under design law, is standardized in Section 4 DesignG. According to this, "a pattern that is the component of a complex product in a product, is used or is inserted into this product is only considered new ... if the component that is inserted into a complex product is visible when it is used as intended remains and these visible features of the component itself ... meet the requirements of novelty ". This fiction is intended to prevent parts of a whole, e.g. B. spare parts that after installation in the whole, z. B. in a machine or a vehicle, are not (no longer) visible, are registered for a design or enjoy legally valid design protection.

The grace period

The grace period already provided for in the GeschmMG old version has not only been retained as such in the new DesignG, but - by Section 6 DesignG - has been expanded compared to the previous regulation. The main innovation is the extension of the period from the previous six months to 12 months, counted back from the filing or priority date, cf. Section 13 (2) DesignG. In addition, § 6 DesignG, contrary to the previous regulation according to § 7 a GeschmMG old version, no longer refers to the "applicant" (or his legal successor), but to the "designer", i.e. H. the sample designer (or his legal successor). What is new compared to the previous regulation is that the grace period can now also be triggered by a third party, provided that the act of disclosure is the "consequence of information or actions of the designer or his legal successor". The same "applies if the sample was disclosed as a result of an abusive act against the designer or his legal successor. (The legislature has obviously oriented itself to Section 3 (4) No. 1 of the Patent Act.) This alternative requirement for the grace period was also specified in Section 7 a GeschmMG old version not provided.

See also

swell

literature

  • Dietrich Scheffler, Novelty and peculiarity of designs according to old and new law - a comparative study, in: Rundbrief Deutscher Verband der Patentingenieure und Patentassessoren (VPP) No. 3, Munich, September 2004, pp. 97 ff
  • Ekkehard Gerstenberg, Michael Buddeberg, Design Law, 3rd edition, Heidelberg 1996
  • Hans Furler, The Design Law, 3rd edition, Cologne, Berlin, Bonn, Munich 1966

Web links

Individual evidence

  1. ↑ Directive 98/71 of the European Parliament and of the Council on the legal protection of designs from October 13, 1998 (published in: Journal of Patents, Designs and Signs (sheet f. PMZ), p. 24 ff)
  2. ↑ a b See Art 1 of the Law on the Reform of Design Law (Design Reform Law) of March 12, 2004, Federal Law Gazette (BGBl) I, p. 390.
  3. ↑ Federal Court of Justice (BGH), in: Journal of Commercial Legal Protection and Copyright (GRUR) 1969, p. 90
  4. ↑ a b c d e f Dietrich Scheffler, Novelty and Eigenart in the design according to old and new law - a comparative study, in: Rundbrief Deutscher Verband der Patentingenieure und Patentassessoren (VPP) No. 3, Munich, September 2004, p. 98 ff .
  5. ↑ So already Hans Furler, The Design Act, 3rd edition, Cologne, Berlin, Bonn, Munich 1966, p. 29
  6. ↑ According to Art. 1 of the Law on the Reform of Design Law (Design Reform Law) of March 12, 2004
  7. ↑ See the "Rüschenhaube" decision of the BGH according to Art 1 of the Law on the Reform of Design Law (Design Reform Law) of March 12, 2004.
  8. ↑ See Art 6 Paragraph 1 Clause 1 2nd HS of Directive 98/71 EC