IPA design section-19-requirements-for-distinctiveness--overview — IP Australia Designs Examiners' Manual – 14.1. Section 19 requirements for distinctiveness: overview

Key legislation in this topic: Designs Act: s 19 Key related topics: Substantially similar in overall impression , Statement of newness and distinctiveness Section 19 of the Designs Act gives specific instructions on how to apply the test for distinctiveness . It directs those deciding whether a design is substantially similar in overall impression to another design to: ​​​​​​​ ​​​​​​​ give more weight to similarities than to differences when comparing designs (s 19(1)) ​​​​​​​ consider the state of development of the prior art base (s 19(2)(a)) ​​​​​​​ if the design application included a statement of newness and distinctiveness , focus on the features identified in that statement as new and distinctive (s 19(2)(b)(i)) the parts of the design to which those features relate, but ‘in the context of the design as a whole’ (s 19(2)(b)(ii)) ​​​​​​​ if there is no statement of newness and distinctiveness, focus on the appearance of the design as a whole (s 19(3)) ​​​​​​​ if the similarity applies to only part of the design, consider ‘the amount, quality and importance of that part in the context of the design as a whole’ (s 19(2)(c)) ​​​​​​​ consider the ‘ freedom of the creator of the design to innovate ’ (s 19(2)(d)) ​​​​​​​ in considering all these factors, apply the standard of the familiar person / informed user (depending on when the application for the design was lodged) (s 19(4)). The examiner’s task is to consider all the factors set out in s 19 and assess the overall effect on whether competing designs are substantially similar in overall impression .