Appendix 4 provides statistics regarding the regime. On average some 6,000 design applications have been filed each year since 2002. Approximately 20% of total registrations request examination, with most being certified. Under 20% of applications filed in any given year continue in force for the full 16 years (after payment of the third and final renewal fee). The majority of design applicants are Australian residents.
The paper asks several questions -
- Would Australia benefit from a designs system with a maximum term in excess of 10 years?
- Would a design grace period be of benefit to users and potential users? Why/why not?
- If a grace period were to be made available, how long should it be for?
- Should such a grace period be an alternative, or an addition to deferment of publication of the kind offered under the Hague System?
- Is there confusion about the use of Statements of Newness and Distinctiveness? Please explain how.
- The ALRC thought that such a Statement of Newness and Distinctiveness should not be mandatory. Do you agree? Please explain why.
- Is a deferred publication process desirable? What are the potential advantages and disadvantages of permitting it?
- How long should the period of deferment be?
- What benefits and/or costs would there be for Australia if an Unregistered Design Right system were introduced?
- Would an Unregistered Design Right system, if introduced into Australia, create confusion? If so, what measures might be appropriate to limit any such confusion?
- Would Australia benefit from acceding to the Hague System?
- Would Australia benefit from legislation changes to include designs in the Notice of Objection scheme? Please explain why/why not?
- Are the copyright/design overlap provisions operating satisfactorily? Please explain why/why not.
- Should there be restrictions in the Trade Marks Act 1995 for registered designs? Please explain why/why not?
- Have the changes to the threshold of registrability introduced with the Designs Act 2003 provided greater differentiation between a new design and the prior art? Please explain how.
- Are the differences between registration, publication and certification under the Designs Act 2003 clear? Should the multi-step process remain? Please explain why.
- Is there a continuing need for publication (and the current regime of requesting registration or publication)? Please explain why?
- Is the Designs Act 2003 able to deal with new technologies eg 3D printing and GUIs?
- Should GUIs be registrable?
- Are there any new opportunities for enhancing the designs system?
- Are there any unintended consequences arising from its implementation to date?
- Do you have any other comments?
One rapidly evolving technology of topical interest is the emergence of additive manufacturing (also known as three-dimensional (3D) printing technology). 3D printers produce articles by layering numerous, custom printed sheets of material, one on top of the other, and binding each layer together in the process. Most 3D printers manufacture products using a range of plastics or composite materials and some printers can also print in metals (e.g. stainless steel).
Until recently, 3D printers were extremely expensive and rare. As such, they were used for prototyping—mainly in the aerospace, medical and automotive industries. Once a design was finalised, a production line would be established and the part would be manufactured and assembled using conventional methods. But 3D printing has now improved to the point that it is starting to be used to produce the finished article. These printers are also becoming increasingly available and affordable, with a number of companies making desktop units. The capacity of the internet has also improved to the extent that a design can be sent as a digital file to be printed on a 3D printer almost anywhere in the world.
Hence, 3D printing is opening up new opportunities for innovation, customisation and creativity. It is also creating new opportunities for counterfeiting and imitating designs (both registered designs and unregistered designs).
As a legal matter, 3D printing may raise issues familiar in other areas of IP, such as the scope of secondary liability for designs infringement; liability of individuals for non-commercial acts relating to designs; and/or the territorial nature of the exclusive rights.The paper also comments on Graphical User Interfaces (GUIs) -
Another area of new technology of significance is Graphical User Interfaces (GUIs) or screen icons. In recent years, GUIs have been increasingly lodged as design applications. There is no standardisation in how countries treat GUIs under their designs systems. Recent editions of the Locarno Classification (LOC) of the Locarno Agreement have introduced a new classification to include: Graphic symbols and logos, surface patterns, ornamentation.58 Although Australia is not a member of the Locarno Agreement, IP Australia uses the 8th edition of the LOC to classify designs. For Member States, the 10th edition will enter into force on January 1, 2014. The consideration of screen icons is raised in the examiner’s manual at D04.3.2. IP Australia does not consider screen icons are a registrable product. However, registrability is not considered during the formalities process and screen icons are appearing on the Register of Designs.