Examination and handling

A design application is handled by an officer at the Patent Office. According to the new code of May 1, 2003, the handling only involves formality checks with regard to title, classification, quality and number of illustrations, and other issues.

If desirable, the Patent Office may perform a supplementary search of the design. Then, the examiner will examine whether the application fulfills the requirements in accordance with the design code: “Right to design shall only be given if the design is novel and exhibits an individual character”, in relation to older public available designs.

The design is novel if there are no identical designs which were public available prior to the filing date of your design application. By identical, it means that the characterizing features only differ in unessential respects. If the originator or someone else approved by the originator have made the design object public available up to 12 months prior to the filing of the design application, the publication is not regarded as a novelty bar to the application.

A design is considered to have an individual character if the overall impression differs from the overall impression of another design which was public available prior to the filing date of your application. During the assessment procedure with regard to individual character, the examiner shall take into consideration to which degree of freedom the designer had during development of the design.

In practice this means that there is a risk that you might get a registration, in which public available products exist in other countries or in product catalogs, old patent literature, etc.

It also happens that the examiner interprets an object of a design application as “banal”, i.e. that it in spite of lack of former predecessors exhibits such a simple and uncomplicated composition, that it lacks the originality required to obtain a design registration.

At any time, a third party may require an administrative re-examination. Then, the registration will be subjected to the same examination procedure as for a supplementary examination, and the Patent Office may withdraw the registration, if justified.