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Cape Town - The design of South Africa's Mobicel Air smartphone may look like the iPhone but it doesn't break European patent rules, says a top industry expert.
Local company Mobicel is moving toward a mid tier market segment with its Air range of devices, but to some, the phone resembles Apple's iPhone.
"First, I don't see any patent there. There are two thousand patents in each of these products, but I don't see them," Benoît Battistelli, president of the European Patent Office told Fin24 as he examined images of the Air alongside that of an iPhone.
"What I see is design, and design can be copied. Here, you have design that has been copied by somebody else," said Battistelli.
He added that design under European law was not protected by patents and as long as firms did not pretend knock-offs were the original product, there was no infringement.
"You have rules concerning designs. Designs are valid for five years and you can extend them for five years and it protects the appearance or the image of an object."
Design copy
The issue of patents has grabbed headlines in the US as Apple and Samsung battle it out over design elements of the iPhone and the Galaxy S range.
Apple has contended that Samsung violated patent rules by copying designs of the iPhone and a jury initially awarded the California company a $930m settlement.
But that amount was reduced on appeal, and in the latest ruling on Monday, Apple's appeal was upheld in part, as far as the patent infringement was concerned. However, the design element was thrown out.
It still means that up to 40% of the original award must be considered.
The Mobicel Air (left) is similar in looks to the Apple iPhone (right). (Duncan Alfreds, Fin24)
But that battle has not dented the appetite of companies such as SA's Mobicel, China's Xiaomi and others from building smartphones that mimic the design of the iPhone.
Technology companies have also shown more interest in filing patents in Europe.
In 2014, 274 174 patents (an increase of 3.1%) were filed with Battistelli's office, compared with 71 745 in the US and 48 657 in Japan. Samsung was the top applicant with 2 541 patents, followed by Philips (2 541) and Siemens (2 317).
Ultimately, the look and feel of a smartphone is a difficult thing to describe as a patent, said Battistelli who oversees a staff complement of around 7 000.
"Here the issue in my view is not about patents, but about designs."
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Watch Benoît Battistelli explain the difference of patent and design in this News24Live online video:
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