Upon or after filing a design application, an applicant may currently request either publication or registration of the design. A design application lapses if a request is not made within the prescribed period, which is typically six months from the priority date. The option of publication was provided as a way for applicants to make a design public and thereby prevent others from obtaining certification for the same design.
However, to date very few applicants have requested publication. The option of publication complicates the designs system. Also, requiring applicants to request registration imposes an administrative burden on the great majority of applicants and can result in the unintended lapsing of applications.
In its 2015 'Review of the Designs System' in Australia, the former Advisory Council on Intellectual Property (ACIP) recommended (Recommendation 9) the automatic publication of designs at six months after the filing date, with the possibility to request publication earlier if desired. An amendment to the innocent infringer defence, in subsection 75(2) of the Designs Act 2003, would accommodate this change.
The Australian Government noted the recommendation in its response to ACIP in May 2016, and committed IP Australia to carrying out further consultation.
On hold 04-Sept-2017
Policy Development 01-Jul-2019
Consultation 31-Oct-2019 to 20-Dec-2019
Policy development 20-Dec-2019 to 12-May-2020
Legislative drafting 12-May-2020 to 02-Dec-2020
In Parliament 02-Dec-2020 to 30 August 2021
Royal Assent 10 September 2021
Completed 10 September 2021
This issue is included in the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 which received Royal Assent on 10 September 2021.