Australian Designs Regime

IP Australia has released an exposure draft of the Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Cth) and Designs Amendment (Advisory Council on Intellectual Property Response) Regulations, 'intended to provide early benefits to designers ahead of further initiatives in development.

Apart from technical improvements the legislation would amend the Designs Act to benefit designers by:

• introducing a 12 month grace period to help protect designers from losing their rights through inadvertent disclosures made prior to filing 
• expanding the existing limited prior use defence to protect third parties who started preparations to make a design before someone else tried to register it 
• simplifying the design registration process by removing the publication option and making registration automatic six months after filing 
• aligning with the other IP rights by giving exclusive licensees legal standing to sue for infringement. 

Findings from the recently concluded IP Australia review of the Australian design economy and the role of design rights are

• Australian designers contribute more than $67 billion to the economy each year, making up 3.5% of GDP on average, with a strong presence in manufacturing and global value chains. fewer than 0.5% of Australian businesses have held a design right in the last 16 years.
• the design rights system in Australia is currently a niche IP right serving a niche set of industries. 
• Evidence of the economic value of design rights is positive but limited.
• the system is difficult to understand; 'Even experienced users can find it difficult to register and use design rights successfully'.
• Economic analysis shows having a design right predicts some productivity gains for a narrow segment of the economy (businesses in a limited set of ‘design rights-intensive’ industries, primarily in manufacturing and some in wholesale trade)
• Not all businesses can expect an economic benefit from having design rights. 
• Design rights provide value as part of a broader business strategy. A broader strategy that includes design rights often also includes being a part of global value chains, having strong competitive strategies, and using informal design protection methods. Design rights work in tandem with patents and trade marks. 
• Australian businesses with an IP portfolio that combines design rights with patents and/or trade marks are seen to live longer, have more employees, and have a higher average profit per employee than businesses who just have design rights on their own.