The Danish Supreme Court has on 16 May 2012 pronounced an interesting decision regarding utility models. Case no 331/2010 – RASN A/S’ utility model no. DK 2007 00003, concerns a device for loading and unloading cargo items into and out of aero planes. Previously, the DKPTO Board of Appeal for Patents upheld the utility model as registered following annihilation proceedings, and the Maritime and Commercial Court confirmed the upholding.
The decision concerns whether the claims of DK 2007 00003 fulfill the criterion of creational step, which applies to Danish utility models and serves the same purpose as inventive step does for patents.
The Supreme Court states in the reasons that the criterion of creational step is less strict than that of inventive step. This is a generally accepted fact, as the preparational works of the Danish Utility Models Act state that the act aims at providing a possibility of protecting technical creations falling below the level of obviousness required for patentability. However, the Supreme Court admits, no clear case law exists revealing the actual difference in strictness between creational and inventive step.
In the preceding decision T 6-08, the Maritime and Commercial Court stated that the consequence of the said lesser strictness is that in the assessment of creational step, the skilled person’s knowledge is restricted to a smaller technical field as compared to that of the skilled person used when assessing inventive step in the field of patents. However, the Supreme Court did not address this point.
Furthermore, the Supreme Court has, in line with previous case law, stated that firm ground must be provided for the court to set aside a decision made by the DKPTO Board of Appeal for Patents regarding creational step.
The Supreme Court confirmed the previous decisions that the claims fulfill the creational step criterion, and therefore that the utility model in suit is upheld.
The decision of the Supreme Court is available (in Danish) here, the decision of the Maritime and Commercial Court is available (in Danish) here, and the decision of the DKPTO Board of Appeal for Patents is available (in Danish) here.
Troels Peter Rørdam, European Patent Attorney
