Introduce 6 month grace period for designs and a prior user defence.

Policy ID: 
41
Status: 
Identified for action
Priority: 
High
Issue summary: 

In its 2015 'Review of the Designs System' in Australia, the former Advisory Council on Intellectual Property (ACIP) recommended the introduction of a grace period of six months before the filing date, together with a prior user defence. The government accepted the recommendation in May 2016.

Currently under section 15 of the Designs Act 2003 a design is registrable if it is new and distinctive when compared to the prior art base for the design as it existed before the priority date of the design. The prior art base for a design consists of designs publicly used in Australia and designs published in a document within or outside Australia.

As a result, if a person, through ignorance or inadvertence, publishes their design before seeking legal protection, the design will not be able to be validly registered because the publishing becomes part of the prior use base. This limits the ability of the designer to test the commercial worth of a design for a limited time prior to submitting an application (for example, showing prototypes at trade shows).

History: 
Policy development 04-Sept-2017
Comments: 

High priority, due to public interest in improving the Australian designs system, as highlighted in ACIP's report.

Anticipated for inclusion in a Designs Bill in 2019

Tag: 
ACIP
Designs

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