2.3. National deposit of industrial design

In J 15/80 (OJ 1981, 213) it was held that a priority right based on the deposit of an industrial design was not recognised for a European patent application. As the EPC was a special agreement within the meaning of Art. 19 of the Paris Convention, a general understanding by the EPC contracting states that the deposit of an industrial design clearly gave a priority right for a national patent application could, by application of Art. 4 Paris Convention, lead to an interpretation of Art. 87(1) EPC 1973 going beyond its terms. However, in the absence of such a general understanding there was no reason to read Art. 87(1) EPC 1973 more broadly than its express terms and scope required. In the board's opinion, a right of priority under the Paris Convention existed if the prior application was for the protection of an invention as such and contained a disclosure of it. The deposit of an industrial design in essence protected aesthetic appearance. Although the deposited design might incorporate an invention, according to national design laws the deposit would not protect the invention as such.

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