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Further, under Section 16 of the Act, the designated design is new unless it is to a design that forms part of the prior art base for the designated design.

Australian design applications are not subjected to substantive examination prior to registration and typically proceed directly to registration. Importantly, a design registration be enforced against a competitor unless, and until, it has been certified with the issue of a Certificate of Examination following successful post-registration examination.

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During such examination, an Examiner will conduct searches to determine if the design is new and distinctive.Unlike some foreign jurisdictions such as the United States, Canada and Japan, there are no grace period provisions for filing a registered design in Australia following a prior publication of that design.However, the criteria that the registered owner must be able to satisfy in order for these provisions to apply are complex and apply only in very specific circumstances.Under Section 15 of the (“the Act”), a design is a registrable design if the design is new and distinctive when compared with the prior art base for the design as it existed before the priority date of the design. the designated design) consists of: (a) designs publicly used in Australia; and (b) designs published in a document within or outside Australia; and (c) designs which are disclosed in a design application having an earlier priority date than the designated design, and which are made available for public inspection on or after the priority date of the designated design.Failure to meet any of the criteria set out above would result in the prior publication in question being maintained as prior art and the eventual invalidation of the registered design.

If you, or your client, are considering design protection for your invention or product, it is important to avoid publication of your invention or product before filing a design application.In another example, a review of a product in an online tech magazine included photographs of a product sample supplied to the reviewer.In the event that circumstances such as the above arise, there are design/copyright overlap provisions available under Australian designs law to exclude some types of prior publication from invalidating a registered design.This can be explained by a gambling behavior in the patenting procedure of large firms, while particularly SMEs encounter difficulties in evaluating both novelty and inventive step of their “invention”.It's a flat-out dismissal of your emotions, but emotional invalidation is especially insidious because of its subtlety.It's a quiet erosion of your value in the relationship.