This article first appeared in Bugnion Journal – To view the Journal in full click here

Art. 6 of Directive 98/91 states that “a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed“.

What constitutes valid disclosure in today’s world is still quite uncertain, which is also why EUIPO launched its CP10 to establish a common approach to examining evidence of prior art disclosed on the Internet. However, as the project is expected to last until the second quarter of 2020, in the meanwhile companies that file designs (and those that seek to invalidate designs) need to increase their attention to Internet disclosure.

Indeed, the Court of Justice (CJEU) held in joined cases C-361/15 and C-405/15 that, as far as both novelty and individual character are concerned, the type of product is irrelevant, because if an earlier product was disclosed to public, irrespective of the sector, it must be assumed that it is known.

It follows that the scope of prior art searches has been greatly enlarged and failure to pay proper attention to the Internet may be a fatal mistake.

© BUGNION S.p.A. – May 2019