R1350/2018-3

• ›The invalidity applicant (appellant) argued the RCD's seven views were inconsistent and depicted multiple different spiral-shaped designs (not a unitary object), that USPTO had identified the same deficiencies, that the contested RCD could not be reproduced identically (potato-cutting process), and that prior designs D1 and D2 were twisted (not merely S-shaped) and destroyed individual character; it also raised new prior designs at appeal stage.
• ›The design holder argued the views showed different directions of the same product, USPTO requirements differed from EUIPO's, and that none of the prior designs were identical or produced the same overall impression given the contested RCD's distinctive flattened oval spiral shape; new appeal-stage prior art should be rejected.
• ›The Board confirmed the views were consistent (showing the product from different angles/distances); rejected the reliance on USPTO proceedings; upheld the priority claim; disregarded new prior designs raised at appeal stage as inadmissible under Article 63(2) CDR; and found D1–D8 and D11 all produced different overall impressions from the contested RCD's clearly twisted, elongated flat oval shape.
• ›The appeal was dismissed; invalidity applicant ordered to bear costs; Article 8(1) CDR ground raised late was also rejected as inadmissible.

• ChairTh. M. Margellos
• RapporteurH. Salmi
• MemberC. Bartos
• RegistrarM. Chaleva

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