World progress is driven by innovation, research, and development. Registration systems for various forms of Intellectual Property, such as Patents and Designs, were introduced to provide inventors, creative designers, and their businesses, with monopoly rights in their innovations. These Intellectual Property rights provide businesses with a competitive edge, so that they can survive and prosper in a cut-throat marketplace.
An overview of Patents and Designs
The Patents Act and Designs Act were introduced to provide security and protection for innovators, and for their work and contributions. Without the protection afforded by Patents and Designs, others would be free to copy their innovations and unfairly compete in the marketplace.
In such a scenario, you can register a Patent or Design, or both, to protect yourself.
Patents protect inventions – for example, where you solve a problem and come up with a new or improved product or system. Patent rights are not usually dependent on the visual appearance of the product. Your Patent monopoly is defined by the Claims, which are therefore the most critical part of the Patent. The Claims are assessed for many requirements – in particular, whether they meet criteria relating to novelty, inventive step (that is, not being obvious), fair basis, sufficiency and manner of manufacture (that is, whether appropriate for Patent coverage). If the Claims don’t meet any one of these criteria, your Patent will be held to be invalid and rendered unenforceable.
With information about existing products, systems and technology becoming increasingly accessible via modern-day searching systems, Patent criteria relating to novelty and inventive step are becoming increasingly difficult to meet.
The appearance of your manufactured product can be protected with Designs. The protection depends on your product’s appearance, which may include features of shape, configuration, pattern and ornamentation. For example, Coca-Cola regularly registers Designs as they update the appearance of their bottles. Additionally, the shape of their classic cola bottle is protected by a Trademark dating back to 1934 – but still valid today because the shape remains recognisable and associated, in the public’s view, with Coca-Cola products.
Trademark protection has advantages over Design protection, in that it can last indefinitely – but is generally available only for truly iconic designs, such as Coca-Cola’s classic cola bottle.
The difference between Patents and Designs
Both Patents and Designs aim to protect and reward creativity and innovation. Let’s look at the difference between these options:
Patents
- Patents can relate to an idea, or an innovation, which leads to an improved product, system or process.
- In Australia and most other countries, Patents have a maximum lifetime of 20 years.
- The requirements for patents and infringement can be found in the Patents Act 1990 (Cth).
- The Patent Office examination process leading to Patent registration is more lengthy, complex and time-consuming than for Designs.
- Generally speaking, the protection afforded by a Patent Registration is superior to that afforded by a Design Registration, as a Patent protects the essential features of an idea, and is not limited to features of visual appearance (shape, configuration, pattern and ornamentation).
Designs
- The maximum lifetime of an Australian Design is 10 years – only half that of a Patent.
- A registered Design ensures that a product’s distinctiveness (in terms of appearance) is protected.
- Design registration does not require examination by the Authorities – this examination process, leading to Certification (for infringement purposes), is not mandatory and needs to be separately requested.
- Design assessment criteria are far simpler and less onerous than for a Patent.
- In most cases, a competitor merely needs to alter the visual appearance (for example, shape) of their product in order to avoid infringing a Design.
Protection Strategies
Entrepreneurship is a crucial feature of a successful business, and thrives on innovation, creativity, and research, which can be protected with Intellectual Property rights. Our Patent Attorneys provide commercialisation strategies to assist you with navigating the complex Patent and Design pathways, and maximise your Intellectual Property position.
With 25 years experience, our Patent Attorneys also provide a wealth of experience and advice to ensure that your Intellectual Property isn’t exploited, against your wishes, by collaborators, manufacturers, distributors or business rivals.
Additionally, we will check that you aren’t jeopardising your Intellectual Property by taking the wrong commercial steps.
With current market conditions, where there is cut-throat global competition, protecting all kinds of Intellectual Property, utilising Patents, Designs or other forms of Intellectual Property, is becoming increasingly important.
