|Figures from Schnabl's expired patent|
|Schnabl's fasteners (on the left) and the distributors fasteners (on the right)|
An element formerly protected by a patent (here the push-rod with its eccentric teeth) can form the basis for competitive originality of a product if the specific shape of the element is not technically necessary, but may be replaced by a different design that serves the same technical purpose without loss of quality.
In case of an (almost) identical copy, a stricter standard applies with regards to the legality of appropriating features of the prior art that adequately solve a technical problem than in case of more limited resemblance. In case of an (almost) identical copy, the copier cannot, in principle, defend itself by argueing that it is merely appropriating an adequate technical teaching no longer protected by patent. If the copying of formerly protected elements leads to an (almost) identical copy, the competitor is reasonably requested to use another adequate ("angemessene") technical solution, unless the risk of confusion about the origin of the goods can be countered by other measures, such as labeling.
|Schnabl's fastener (top) and alternative forms allegedly achieving the same technical effect (bottom)|