Brompton: a clash of patents and copyright
On February 6 the advocate general (AG) Manuel Campos Sánchez-Bordon at the Court of Justice of the European (CJEU) issued his opinion on the Brompton case (C-833/18), which looks at the recurring issue of technical function.
The AG’s opinion concerns the fundamental question of the relationship between industrial property rights and copyright protection within the EU.
Simply put: can a certain product design that was subject to patent protection also benefit from copyright protection? The answer to this question can have far-reaching consequences in practice, in particular with regard to the term and territorial scope of protection, as well as the formal requirements of such protection.
The AG issued his opinion just months after the CJEU’s judgment in Cofemel (C‑683/17, September 2019). In Cofemel the CJEU, in line with its previous decisions, held that the notion of a “work” within the meaning of article 2(a) of the InfoSoc directive, being an autonomous notion of EU law, is to be interpreted uniformly across the EU, presupposing only originality and identifiable, objective expression of the subject matter.
According to Cofemel, copyright protection applies where those two requirements are met. Cofemel prohibits national courts from applying further prerequisites for copyright protection, such as aesthetic or artistic elements.
Background
Andrew Ritchie developed the foldable Brompton Bike in the late 1970s, and his company Brompton Bicycle filed for patent protection in 1979, with commercial sales beginning in the 1980s.
Since 1999 when the patent expired, the company has continued to challenge imitators, now invoking copyright protection.
On the basis of copyright, the inventor-author and his successors could have exclusivity rights for 70 years after the author’s death (ie, beyond 2090) for a subject matter that had been patent-protected in 1979. Such exclusivity rights would exist without any formalities or payment of fees and—by virtue of the Berne Convention—virtually worldwide.
Between 2006 and 2010, courts in Belgium, Spain and the Netherlands granted the company such copyright protection, holding that although the shape of the bike was also due to its technical functionality, there was room for creative elements within the constraints of the technical function.
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