3 October 2016Jurisdiction reportsMichiel Rijsdijk

Brilliant ideas and inventive step

Fortunately there is a solution for this annoying problem: a cut-out at the edge of the rusk to enable you to remove it in one piece. This is a brilliant invention for those regularly finding a plate full of broken rusk.

Is this solution too obvious to be patented? That question was the subject of a recent matter before the District Court of The Hague, concerning a patent for biscuits with cut-outs.

A patent in the Netherlands is not subject to preliminary examination. Therefore the Dutch Patent Office (DPO) provides the possibility to ask it to advise on nullity grounds in respect of a previously granted Dutch Patent (Article 84 of the Dutch Patent Act [DPA]). If a positive outcome is advised it regularly serves as the basis of a subsequent nullity claim.

In this matter, the DPA provided advice under article 84 in respect of the patent, NL 1012379 (‘379). Filed in 1999, the patent concerned “flat, brittle products such biscuits having cut-outs to act as finger holds to aid their extraction from a tight wrapper”.

The DPO considered that the skilled person would find evidence of prior art in US patent, US number 4124727 (‘727). The patent shows a cylindrical packaging with a stack of deep-fried snacks with a cut-out in the middle, as prior art.

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