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Mobile Devices

This article discusses the notable December 3, 2009, decision of the Court of Appeal Aix-en-Provence in the case of Alcatel Lucent v. H. Waldmann. It examines the interplay between author’s rights and registered designs, highlighting the cancellation of the registered design and the dismissal of action on both grounds. Key themes include the disregard for disclaimed features and the importance of overall impression within design protection. The analysis emphasizes the unique attributes of French legal context and the implications for mobile device design matters.

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Mobile Devices

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  1. Mobile Devices

  2. Elisabeth Fink Boards of Appeal, OHIM Patrice de Candé General Partner of de Candé-Blanchard Chris Carani McAndrews, Held & Malloy Ltd. Chair: Darren Smyth Partner in Charge, EIP Elements Practice Group

  3. Mobile Devices and Design The French Approach Patrice de Candé General Partner, de Candé-Blanchard

  4. Court of Appeal Aix-en-Provence: • 3 December 2009: Alcatel Lucent v H Waldmann • Author’s right • French registered design Precedent

  5. Alcatel Lucent v H Waldmann CA Aix en Provence 3 December 2009 • Decision of the Court of appeal: six pages. • Author’s right and registered design considered simultaneously. • Cancellation of the registered design. • Action dismissed on both grounds.

  6. Dotted lines: • No precedent. • A French judge will likely disregard the feature as being disclaimed (designs do not protect what is not visible). Hatching: • No precedent • A French Judge will likely regard this feature as part of the appearance of the device.

  7. Existing design corpus • HCJ decision Samsung vs Apple : • six pages. • A French decision would not analyse in such great detail the existing design, corpus (one or two pages). • Relation between definition of the informed user and existing design corpus: less taken into account.

  8. iii) Nature of the product • No inference of the indication of the product: “hand held computer” (HCJ point 44: influence on the existing design corpus and 46: influence on design constraints). • Analysis similar to the analysis in author’s right matters.

  9. iv) Features dictated by technical function • Application of the “multiplicity of forms” theory. • If there is an alternative: feature is to be protected. • Supreme court refused this theory under the former law: evolution possible?

  10. v) Informed user – overall impression • French Courts seldom specify who the informed user is: habit taken from author’s right approach. • Tendency to interpret overall impression as equivalent to risk of confusion (Supreme court: 26 March 2008). • It is not necessary under French national law to consider the degree of design freedom when assessing the scope of protection of the registered design (article L 513-5 IPC).

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