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Design or Patent Protection - Which One Do I Need?

Jack King-Scott

Generally speaking, the basic difference between the two is that a registered design protects the overall appearance of a product whereas a patent protects the way an invention works – its functionality.  It is therefore no surprise that the scope of protection afforded by a registered design is generally narrower than that obtained by way of a patent.

 

So which type of protection do you need?  

 

Typically, it depends on what you want to protect.  In a perfect world, you would protect your intellectual property with both.  However, if you had to choose, in most scenarios you would choose patent protection over design protection.  Apart from generally providing a broader scope of protection, a patent will also typically provide you with a longer period of protection.  The term of a standard patent in Australia is 20 years whereas the term of a registered design is 10 years.

 

Despite the above, there are scenarios in which it may be better to choose design protection over patent protection.

 

For example, say your intellectual property is a tea cup with a unique shape (see below).

Novelty Mug

In order to obtain patent protection, there must, among other requirements, be something new and inventive about your tea cup.  These requirements may be difficult to meet, particularly if there is no functional aspect to your tea cup’s unique shape.  

 

In contrast, in order to obtain design protection, the design of your tea cup need only be new and distinctive.  That is, there is no “inventiveness” requirement for a registered design in Australia.

 

Furthermore, although the scope of protection provided by a design registration for your tea cup may be somewhat narrower than that provided by a patent, the protection afforded will likely be stronger.  A registered design need only be new and distinctive and therefore may be less vulnerable to attack from an infringing third party in an infringement action than a patent.

 

In summary, whether you protect your intellectual property with a patent, a registered design or both ultimately depends on what it is you want to protect.  Here at Kings, we specialise in obtaining the best scope of protection possible for our client’s intellectual property.


Please feel free to contact us at mail@kingsip.com.au if you have any queries or if we can assist you in protecting your intellectual property (even if it is a tea cup!).

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