The appellant, disagreeing with the aforementioned decision, filed a request for reconsideration, in which, referring to the failure to respond to the objections raised by the authority in March 2016, she stated that this was due to the lack of contact with the patent attorney who was supposed to represent her in the proceedings. Furthermore, addressing the objections, the appellant indicated that the submitted design is novel because it consists of sewing in a zipper tape with zippers, thereby creating a cross-shaped design, independent of the print on the fabric. The novelty is also evidenced by the sewing of four zippers in the middle, which creates an “envelope” that serves as an ornament and enables it to fulfill the function of a duvet cover, and also gives the duvet cover an individual character. Consequently, the submitted design is different from those available on the market.
Regardless of the above, the Patent Office of the Republic of Poland, in a decision of November 2016, upheld the contested decision. The justification stated that, after a renewed analysis of all the evidence gathered, the previous position should be maintained, as the application does not reflect an industrial design within the meaning of the Act on Industrial Property. The main features of the application include functional features that facilitate the use of the duvet cover by consumers, which clearly prevents registration. The authority did not raise the objection of lack of novelty, as in this case, we are not dealing with an industrial design.
Disagreeing with the above decision, the appellant appealed the new decision of the Patent Office of the Republic of Poland to the Administrative Court in Warsaw, alleging that it violated substantive law (Article 102 of the Patent Law and Article 107(1) in conjunction with Article 104 of the Patent Law), as well as procedural law (Articles 11, 77, 80, 107(1) and (3) of the Code of Administrative Procedure). In this connection, the appellant requested that the appealed decision be overturned in its entirety, as well as the preceding decision of the Patent Office of the Republic of Poland.
In considering the case, the Court stated that the authority had correctly assessed the evidence in the case and applied the appropriate substantive law to the established facts. Furthermore, the Administrative Court pointed out that the evidence included illustrations showing the principle of opening the envelope, not the envelope itself, and four low-quality photographs. The description of the application presented three variants of the cover and indicated that their common feature was a zip-fastened envelope located in the middle of the cover and holes made in the four corners of each cover, which was intended to facilitate the application of the cover to the duvet. The Court pointed out that, given that the appellant had not actually responded to the objections raised in the March 2016 notification, the authority was entitled to issue a rejection decision (in August 2016). Furthermore, the court, like the authority, stated that the description did not show the essential features, i.e. the zip-fastened envelope located in the middle of the cover and the holes made in the four corners of each cover, in a way that would allow them to be reproduced; they were only schematically indicated and their shape and position were indicated as essential features. This, in turn, makes it possible to design a wide range of cover designs that differ in pattern, ornamentation or colour. Although the appellant submitted new illustrations showing the features of the product in the application for reconsideration of the case, these could not be taken into account in the last appealed decision of the Patent Office of the Republic of Poland, as they were not part of the application documentation.
In view of the above, the Administrative Court in Warsaw, in its judgment of 28 July 2017 (VI SA/Wa 161/17), dismissed the appeal of B.F.
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