Case Summary

Headquartered in Brookswick, Canada, McCann Foods is the world’s largest producer of frozen fries contributing to one-third of the world’s frozen fries supply.

Unitalen was entrusted by McCann Foods to file the invalidation request for two design patents titled as "Twisted French Fries" owned by another multinational food company (hereinafter referred to as “the patentee”) in China.

Unitalen team conducted full range of prior art searches and analyzed the relevant public evidences provided by the client from outside of China. Due to the inaccessibility to the outside networks such as YouTube website where the relevant evidences were collected, Unitalen had their Hong Kong lawyers preserve such evidence in the form of "Download Network Data Statement" to prove its authenticity.

Based on the prior design patents and the prior publication of pictures, photos and videos on the Internet and other evidence, Unitalen filed the invalidation request.

After examination, the CNIPA recently issued a written decision on request for invalidation, declaring that the two design patents involved were all invalid.

CNIPA Opinions

The CNIPA held that: First of all, if the online evidence comes from a website with a relatively high credibility, the content disclosed on it is detailed, comprehensive with proven browsing records, and it’s preserved through legal notarization and authentication procedure, if there is no evidence that the website or the video publisher has a stake of interest with the parties involved and there is no evidence to the contrary to prove that the content of the video and the upload time are changed at will, the authenticity of the online video as evidence can be confirmed; Secondly, the patent involved and the compared design are both spiral French fries, they present a similar visual effect in the overall appearance, and the difference doesn’t suffice to have a significant impact on the overall visual effect of the product. Therefore, it’s determined there is no obvious difference between the involved patent and the compared design, and it violates the provisions in Article 23, paragraph 2 of the Patent Law.