Response 112160823

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1. Virtual Designs

1. Do you agree with our proposed approach to protect virtual designs?

Please select one item
Yes
No
Somewhat - please explain below
Please explain your answer below
This proposal would align Australia more closely with foreign design protection frameworks which would be a positive development. Any such changes must make it a priority that the IP register displays clearly to the public, in concrete terms, what is purportedly protected by any "virtual design" registration.

2. If you create virtual designs, would you protect your virtual design using the proposed designs system?

Please select one item
Yes
No - please explain below
Not applicable

3. Which types of virtual designs should be protected? (choose all that apply)

Please select all that apply
Graphical user interfaces
Icons, including animated icons
Screensavers
Projected interfaces and information
Augmented reality
Virtual reality
Physical devices with electronic elements
Expressive content, such as a photograph, an online video, or an entire video game
Fonts
Holograms
None
Other - please specify below

4. Do you agree with IP Australia’s proposed approach to infringement of virtual designs?

Please select one item
Yes
No - please explain below

5. Should we allow formats such as video files or animations to represent virtual designs in an application?

Please select one item
Video files
Animations
Both (video files and animations)
Neither
Other - please specify below

6. How do you think the copyright/designs overlap provisions should apply to virtual designs?

Please explain your answer below
Generally, I consider that 2D and 3D designs should be treated the same as far as possible and for the sake of consistency (e.g. potential for concurrent copyright and registered design protection for at least part of the copyright term).

7. Are there any unintended consequences or adverse effects of this proposal?

Please explain your answer below
Need to be careful that logic behind the existing exclusion of copyright protection to essentially functional 3D design features intended for mass production is applied fairly to any such 2D design features.

8. Are there other options that should considered? If so, how are these better than the proposed model?

Please explain your answer below
Nothing comes to mind

2. Partial Designs

1. Do you agree with our proposed approach to protect partial designs?

Please select one item
Yes
No
Somewhat - please explain below

2. Would you register your partial design using the proposed system?

Please select one item
Yes
No - please explain below

3. Do you agree that a part of a product could be indicated by means of visual indicators in representations, by a written claim or by both visual indicators and a written claim?

Please select one item
Visual indicators
Written claim
Both visual indicators and written claim
Other - please explain below
Please explain your answer below
Anything that improves clarity should be encouraged. For consistency, IP Australia could suggest standard terminology for use in any written claims.

4. Do you agree that a product name for any design should be sufficiently clear for a familiar person to determine the product’s nature and intended use?

Please select one item
Yes
No

5. Do you agree with IP Australia's proposed approach to infringement of partial designs?

Please select one item
Yes
No - please explain below

6. Do you agree with IP Australia's proposal that the designs/copyright overlap provisions should apply to partial designs in the same way as they apply to designs for whole products now?

Please select one item
Yes
No - please explain below

7. Do you agree that ‘statements of newness and distinctiveness’ (SONDs) should be abolished?

Please select one item
Yes
No - please explain below

8. Are there any unintended consequences or adverse effects of the proposal?

Please explain your answer below
None that I can think of

9. Are there other options that should considered? If so, how are these better than the proposed model?

Please explain your answer below
None that I can think of

3. Incremental Designs

1. Do you support our proposed approach to preliminary designs?

Please select one item
Yes
No - please explain below
If you answered 'No', please explain below
The proposed approach to preliminary designs could, in practice, be beneficial to current ways of industrial design development strategies and it has my qualified support up to a point. This is because I have certain reservations from a legal perspective which are outlined in my responses to questions 5 to 7 below.

2. Would you use the preliminary design option to protect your incremental designs?

Please select one item
Yes
No - please explain below

3. Do you support our proposed approach to post-registration linking?

Please select one item
Yes
No - please explain below

4. Would you use the post-registration linking option to protect your incremental designs?

Please select one item
Yes
No - please explain below

5. If you plan to export your design, would you also want to use the preliminary design option?

Please select one item
Yes
No
I only protect my designs in Australia
Please explain your answer below
I feel that the incremental design option is only really suited for [incrementally-developed] designs that will be commercialized in Australia only. To me, it resembles the US continuation-in-part design patent option and, with the exception of potential reciprocal protection in the USA, the Australian incremental design option could suffer the same weakness in that subsequent designs may have diminished design protection abroad due to lack of reciprocal recognition of post-registration linking to the parent design. This will need to be clearly communicated to designers and potential design owners.

6. Are there any unintended consequences or adverse effects of either of these proposals?

Please explain your answer below
Australian designers, and potential design owners, that intend to commercialize their products outside Australia will need to have a very good understanding of priority rights granted by the Paris Convention - and the pitfalls of public disclosure - before they rely too heavily on the incremental design option. I do see a real danger that this initiative will introduce undesirable lack of clarity in scope of design protection.

7. Are there other options that should be considered? If so, how are these better than the proposed models?

Please explain your answer below
If the Australian incremental design option proposal does approximate to the US continuation-in-part design patent option, then IP Australia should seek US reciprocal recognition. This would at least be something to mitigate the absence of similar deign provisions elsewhere.