IPA design test-for-newness — IP Australia Designs Examiners' Manual – 13.4. Assessing newness and distinctiveness: Test for newness

The test for newness specified in s 16 (1) is: A design is new unless it is identical to a design that forms part of the prior art base for the design. This includes any design published anywhere in the world or publicly used in Australia. Relevant considerations are: The newness test requires us to consider all features of the design – i.e. both the product as a ‘thing’ (regardless of the product name) and the visual features of the product. The comparison is to be made against a single design (see LED Technologies v Elecspess [2008] FCA 1941 at para 12). The newness test relates to the appearance of the design, not the overall impression. This means that a visual feature of the design that is not present in the citation is enough to establish newness of the design – even though it may have minimal effect on the overall impression created by the design. The ‘familiar person’ or ‘informed user’ concept has no role to play in assessing newness. The test is one of strict identicality. The comparison is of the product as a thing, regardless of use or purpose. See Product name . As the test for newness is a very narrow test of identicality, most objections to the validity of a design will be based on a lack of distinctiveness.