What to expect from IP Australia's consultation 2 min read
IP Australia has published the outcomes of its 2023 consultation, which sought stakeholder feedback on a series of significant proposed changes to the Designs Act 2003 (Cth). These included provisions for virtual, partial and incremental designs, which it plans to pursue. We explain the key feedback and what comes next.
Overview
IP Australia intends to proceed with the proposals to:
- protect virtual designs, including user interfaces and product elements only visible when a product is in use;
- protect partial designs for parts of whole products made in one piece; and
- allow post-registration linking, to enable designers to have more certainty when protecting changes in their designs.
We expect the proposed legislative changes to be before Federal Parliament in late 2025.
Virtual designs
For virtual designs, feedback focused on the introduction of a definition of virtual designs and products. As explained in our previous Insight, the initially proposed definition of a 'virtual product' required further refinement, and it is a welcome development that IP Australia has highlighted this feedback.
It was also suggested that video or animation files be allowed to supplement applications for virtual designs, and that applications could be made for a design applied to both a virtual and physical product at the same time. Consideration will also be given to enforcement against the seller of a virtual product, and not necessarily the customer or end user.
Partial designs
For partial designs, feedback focused on the introduction of mechanisms to protect those that would allow separate parts of a product to be registered as a single design, together with the requirement to identify a physical product to which the part relates. Fortunately, the 'similar products' test will not be pursued, as its justifications were unpersuasive, and likely to cause unnecessary confusion, uncertainty and expense.
Post-registration linking (incremental designs)
While support for incremental designs was varied, post-registration linking received favourable feedback. The primary focus was on introducing the ability to link an initial registered design to related subsequent designs, to ensure publication and use of the initial design does not affect the validity of the subsequent design.
A proposal for 'preliminary designs' will not be pursued at this time.
What's next?
IP Australia has reported the favourable feedback to the Government, which is now considering legislation aimed at including virtual designs, partial designs and post-registration linking. Further updates regarding draft legislation are expected in late 2025.
These proposals, if accepted, will provide more options for clients seeking to protect their designs in Australia.