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What is the difference between a patent and a design?

You’ve just developed a new mobile phone – it’s both unique in appearance and works like no other mobile on the market. So how do you go about preventing others from copying the look and workings of your invention?

While the Australian design system protects the appearance of an item, the patent system aims to ensure others do not copy the way an invention functions.

Designs - What steps do I need to take to protect the appearance of my invention via design registration?

The designs system offers protection for a variety of goods, including; clothes, kitchen utensils and furniture. However, protection is limited to the visual features of a product, meaning that design protection is ideal for products that can only look one way in order to function, or products for which the appearance is the main selling point (e.g. designer goods, clothing, goods to which a particular pattern is applied and so on). If the way your invention works is more important than the way it looks, then a patent application may be a more appropriate form of protection.

The Designs Act 2003 states that a design, in relation to a product, is “the overall appearance of the product resulting from one or more visual features of the product”. The visual features of a product include its “shape, configuration, pattern and ornamentation”. The “feel of the product” or “the materials used in the product” are not considered to be visual features of the product.

A design is capable of being registered if it is ‘new and distinctive’ when compared with products or designs that were publicly disclosed before the priority date of the design application. This includes designs which have already been publicly used in Australia, published in a document in or outside of Australia, and designs that have been disclosed in earlier design applications.

The distinctiveness requirement will be satisfied where the design in question is not ‘substantially similar’ in overall impression to an earlier design. This is not a straightforward assessment, and requires more consideration to be given to the similarities between the designs rather than the differences. Further consideration is also given to the ‘state of development of the prior art base for the design’. The creator’s freedom to innovate is also considered.

A design application will include a number of representations or images of the product, typically from a variety of different angles so as to show the unique visual features of the product. 

In Australia, a design application undergoes a formalities check only prior to its registration, and a registration certificate will usually be issued two to three weeks after filing.  However, the design can only be enforced against an infringer once it has been examined and certified. Examination can be requested at any time following the registration of the design. Australian designs have a maximum term of 10 years from the date of filing.

Although the registration requirements for a valid design or patent are significantly different, each system works to protect your invention or product from being copied. So registering the unique shape of your invented mobile phone as a design and patenting the electronic systems that make the phone work may help to build a wall of intellectual property rights around your invention.

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If you wish to protect your product and gain a commercial advantage, please contact our Intellectual Property practice group about applying for a design or patent by phoning +61 7 3024 0000 or emailing ip@hopgoodganim.com.au

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