Not directly to do with the Block Exemption, but worth passing on: my friend Paul Jones tells of a design case in China between Fiat and Great Wall Motor Company. Fiat claimed that Great Wall's Peri infringed its design patent protecting the appearance of its Panda model. The two cars can be seen here and here.
Last year an Italian court upheld a similar claim, but Fiat have had less success in the Chinese courts, with a decision of the Hebei Province Higher People’s Court going against it. As the report of the judgment is in Chinese, I will defer to Paul's formidable language skills and quote his report:
The test for infringement of a design patent in China is very similar to the test in the United States. In the U.S. as a result of the decision in Egyptian Goddess (Comment and link to decision: http://thettablog.blogspot.
In China a design patent registration does not require the submission of claims, but only of pictures. To obtain its design patent Fiat submitted four pictures – front, left right and rear. To support their contention of infringement they commissioned a market research firm to interview people outside supermarkets, stadiums and other public places in Beijing, Shanghai, Guangzhou and Chengdu. The interviewers showed the people a display board with pictures of each of the two car models. They also had their Beijing lawyers purchase a Great Wall car to obtain access to the design parameters.
Both the Intermediate and the Higher Court rejected the survey. The Higher Court pointed out that no attempt was made to focus on potential car-buyers, who would pay much more attention to determining the origin of the car that they might buy. The participants in the survey were simply members of the general public. The court also said that looking at pictures was not the same a s looking at a three dimensional car.
Further the court noted that motor vehicles have been developing for over a hundred years and are being continuously refined and improved. The holder of a design patent cannot stop others from improving on existing technology. Design patents protect only the unique aspects of the car design, in this case as shown in the side views, but average consumer of motor vehicles would be more interested in the vehicles size, shape and technical parameters than in just the elements protected by the design patent. Thus differences in the design of the front of the car should thus also be considered. The test for infringement is whether the designs are the same or similar to the average purchaser. The court decided that in this case the car designs were not.
Last year an Italian court upheld a similar claim, but Fiat have had less success in the Chinese courts, with a decision of the Hebei Province Higher People’s Court going against it. As the report of the judgment is in Chinese, I will defer to Paul's formidable language skills and quote his report:
The test for infringement of a design patent in China is very similar to the test in the United States. In the U.S. as a result of the decision in Egyptian Goddess (Comment and link to decision: http://thettablog.blogspot.
In China a design patent registration does not require the submission of claims, but only of pictures. To obtain its design patent Fiat submitted four pictures – front, left right and rear. To support their contention of infringement they commissioned a market research firm to interview people outside supermarkets, stadiums and other public places in Beijing, Shanghai, Guangzhou and Chengdu. The interviewers showed the people a display board with pictures of each of the two car models. They also had their Beijing lawyers purchase a Great Wall car to obtain access to the design parameters.
Both the Intermediate and the Higher Court rejected the survey. The Higher Court pointed out that no attempt was made to focus on potential car-buyers, who would pay much more attention to determining the origin of the car that they might buy. The participants in the survey were simply members of the general public. The court also said that looking at pictures was not the same a s looking at a three dimensional car.
Further the court noted that motor vehicles have been developing for over a hundred years and are being continuously refined and improved. The holder of a design patent cannot stop others from improving on existing technology. Design patents protect only the unique aspects of the car design, in this case as shown in the side views, but average consumer of motor vehicles would be more interested in the vehicles size, shape and technical parameters than in just the elements protected by the design patent. Thus differences in the design of the front of the car should thus also be considered. The test for infringement is whether the designs are the same or similar to the average purchaser. The court decided that in this case the car designs were not.
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