20 Mar Is a picture really worth a thousand words?
In the US the vocabulary for design patents was further extended by a judgement of the Court of Appeals in the case of Curver Luxembourg SARL v. Home Expression Inc. Curver is the holder of a design patent entitled: ‘Surface ornamentation for a pattern for a chair’. Based on this design patent Curver thought they would put a stop to the production of baskets with the same pattern.
Nowhere in the drawings of the design patent is there a chair pictured. Following the classic jurisdiction; ‘In design patents, unlike utility patents, the claimed scope is defined by the drawings rather than language.’ Curver has concluded that it concerns a decoration applicable on any possible surface. But it is the first time that The Court countered this and was clear that if the drawings do not show any ‘article of manufacture’, then the language can restrict the scope of protection. Too bad for Curver Luxembourg SARL because chairs are not baskets.
In the EU (the Registered Community Design or RCD) they are all stonewalling. A title does not get chosen and about the Locarno classification everything is all clear: the goal is purely administrative. Our jurisdiction is obviously contrary to the American jurisdiction: ‘A registered Community design shall grant the holder the exclusive right to use the concerned model for all types of products – and not only for the product specified in the application for registration.’ The Ball Packaging case also left us speechless: the description we add to our request will be ignored.
For the extension of RCD to a design patent we already took into account the differences between the EU and the US. With this jurisdiction, there is another one. We often find that US attorneys adopt the Locarno classification as a title for the design patent. So we need to be careful: in the US this title definitely influences the scope of protection. Therefor: watch your language.
© 2019, Hanne Lammens for IP Hills
 Curver Luxembourg, SARL v. Home Expressions Inc., 12 September 2019, No. 18-2214 (Fed. Cir. 2019)
 Ball Beverage Packaging Europe Ltd, (replacing Ball Europe GmbH) v EUIPO – Crown Hellas Can SA (Cans), 13 juni 2017, Case T‑9/15 ECLI:EU:T:2017:386.