IP Australia is holding a public consultation process on potential designs law changes, as part of an ongoing effort to modernise Australia’s design rights system and enhance design protection. Submissions are being accepted until Tuesday 8 August 2023.
This review forms the second part of significant designs reform in Australia, with the first round in 2019 yielding the introduction of the 12-month grace period for designs. Anthony Selleck and I wrote about the introduction of the grace period last year, while Jenny Wyndham-Wheeler and Radhika Moore recently discussed specific aspects of the grace period here.
The current round of consultation addresses three core topics:
- Virtual designs
- Partial designs
- Incremental designs
It would be a welcome development if IP Australia chooses to introduce virtual and partial designs into Australian Designs Law, as this will bring Australia into line with many of the major economies of the world. The virtual designs proposal is also overdue recognition of the importance such designs play in the digital age.
The proposal regarding partial designs – to recognise parts of whole products “made in one piece” – seems somewhat limiting and unusual. Griffith Hack will make submissions regarding the proposed “one piece” limitation.
The proposal to introduce incremental designs is surprising and thought-provoking. The recognition of such designs may well be a unique development in the global design landscape. The proposal appears to provide for “designs of addition” under Australian designs law.
Virtual designs:
What IP Australia is asking: How should virtual, non-physical designs (including screen displays, screen icons and graphical user interfaces (GUIs) be protected?
What is being proposed: A design right in Australia currently protects the overall look of physical products, however, it does not protect the look of products with no physical form like a graphical user interface or an icon – otherwise known as a ‘virtual design’.
IP Australia is proposing to protect virtual designs, including user interfaces, and product elements only visible when the product is used. This will bring Australia in line with many other countries. Designers who design these kinds of products would benefit by gaining access to the registered designs system.
More information on Virtual Designs reforms can be found here.
Partial designs:
What IP Australia is asking: How should design protection for parts of a product made in one piece be provided?
What is being proposed: IP Australia is proposing to protect design innovation for parts of whole products made in one piece. This change would improve the opportunity for designers to commercially benefit from the Australian designs system. It would also bring Australia into line with many other countries already offer design protection for parts of whole products.
More information on Partial Designs reforms can be found here.
Incremental designs:
What IP Australia is asking: How should more flexibility for designers to protect incremental improvements to their designs throughout the design process be offered?
What is being proposed: Because the current designs system does not address the incremental nature of developing designs, IP Australia is proposing to allow designers to protect their designs as they develop their products throughout the design lifecycle. There are two variations of this reform proposal up for discussion:
- Preliminary design: before registering the main design, the designer can file a low-cost application for a preliminary design (preliminary application) and can further develop the design for up to 6 months, before filing a main application for a design with incremental changes from the preliminary design (main design).
- Post-registration linking: after registering the main design, the owner of a registered main design can link it to a subsequent design which has incremental changes to the main design.
More information on Incremental Designs reforms can be found here.
What will happen after the consultation process ends?
IP Australia will refine the three proposals based on feedback received and report the outcomes to the Australian Government, who will then decide whether to proceed with legislation and further consultation. We will be watching this with interest.
How to make a submission?
Submissions are open to anyone with an interest in the Australian designs system, and can be made on the IP Australia’s website. Submissions close on Tuesday 8 August 2023.
