Jens Schovsbo and Graeme B. Dinwoodie
This chapter examines the responses of the EU design system to situations where just one or very few shapes will enable the product to work. It focuses on the exclusion of design protection of features that are “dictated by function” and the limits on protection for the design of spare parts. After describing the analytical starting point that flows from the so-called “EU Design Approach”, recent decisions of EU and national courts are analyzed. We argue that, even though the recent DOCERAM decision of the CJEU has provided a good starting point for determining those features of a design that are dictated by function, great care should be taken not to over-extend the principles of the case lest that jeopardize some basic features of the EU Design Approach. For spare parts, we suggest that legislation is needed and recommend the introduction of a repair clause in the EU Design Directive.
Clement Salung Petersen and Jens Schovsbo
The Unified Patent Court (UPC) will be a new court system common to the European Union Member States that adopt the unitary patent package. Because of the biases embodied in the UPC institutional setup, there is a risk that non-technical values and interests will be either overlooked or underdeveloped in UPC decision-making. In this chapter, we will analyse how these blind spots can be covered in patent litigation. We will focus on the role of the UPC judges and third parties in establishing a basis for UPC decision-making, and recommend how to interpret the existing rules and principles.
Thomas Riis and Jens Schovsbo
Traditionally copyright has been exploited in separate geographical markets. This practice restricts the ability of users to access online services on their electronic devices wherever they are in Europe and regardless of borders, viz. so called ‘portability’. This chapter describes the complex legal background in EU law to limitations on portability in copyright, user and producer contracts and technological protection measures. Recently, specific EU legislation has been proposed (the Portability Regulation and the Geo-Blocking Regulation) with an aim of amending the current legal regime. It is argued, however, that existing EU rules and principles, in particular the rules of competition law, may deal with the challenges of the existing restrictions on the cross-border access to online services to such an extent that those challenges in themselves do not necessitate any change of legislation. Keywords: copyright, online user, portability, territorial restraints, competition law, EU
Annette Kur and Jens Schovsbo
Ãsa Hellstadius and Jens Schovsbo
This chapter addresses the rule in EU patent law that for patent applications pertaining to human biological material, the person from whose body the material is taken must have had the opportunity of expressing free and informed consent (FIC) in accordance with national law. We argue that the patent rules should be understood in the light of the development in health law and fundamental rights law where FIC has long been a central concept which is recognized in, for example, the EU’s Charter on Fundamental Rights. Against that basis, we suggest that patent law and patent practices have so far not fully recognized the importance and central role of FIC. For these reasons, noncompliance with the FIC requirement arguably has the potential to be used to challenge patent validity. Whereas patent law clearly should acknowledge the importance of the FIC obligations, we suggest that the effects of this should be measured carefully and with a view of maintaining the overall balancing of interests. We therefore recommend that even though noncompliance with the provisions on FIC does in fact have the potential to invalidate patents, this should only happen in those rare circumstances where such noncompliance would amount to not only a violation of legal rules but also amount to a serious violation of principles of ordre public or morality in line with current patent law standards.
Jens Schovsbo and Thomas Riis
This essay examines how the protection of designs of mass-produced goods has developed in the EU. Starting from a Nordic perspective, it is pointed out how the coverage of the protection of design has expanded dramatically over time. As a result, today’s designers often find themselves at a smorgasbord of protection options in copyright, design law, trade mark law and unfair marketing law. It is shown how this development has taken place in a piecemeal way and not according to any general master plan. It is argued that the combined effect of these developments is a risk of overprotection and of undermining design law as the base line protection model for designs. Finally, it is argued that the upcoming reform of the EU design system should seek to address these concerns and provide a clear platform for the design law protection scheme. To do so, a holistic approach should be undertaken which involves also the protection offered in adjacent areas such as trade mark, copyright and unfair competition law. Keywords Design law, EU, copyright law, trade mark law, unfair competition law