D07.1 General Information/Background

Date Published

The prior art base is the information against which a design is assessed for newness and distinctiveness. Section 15(2) defines the prior art base as consisting of:

  1. designs publicly used in Australia; and
  2. designs published in a document within or outside Australia; and
  3. designs in relation to which each of the following criteria is satisfied:
  • the design is disclosed in a design application;
  • the design has an earlier priority date than the designated design;
  • the first time documents disclosing the design are made available for public inspection under section 60 is on or after the priority date of the designated design.

Importantly, the definition of the prior art base identifies the designs which can be individually compared with the design. As was stated in LED Technologies Pty Ltd v Elecspess Pty Ltd [2008] FCA 1941 at para 21:

newness and distinctiveness are to be assessed not by comparing the design in question to the prior art base as a whole but by comparing it individually to each relevant piece of prior art. Put another way, a design that combines various features, each of which can be found in the prior art base when considered as a whole but not in any one particular piece of prior art, is capable of being new or distinctive.

The prior art base is determined at the point in time immediately before the priority date of the Design. Note that there is no exclusion of ‘old’ material from the prior art base – thus a 19th century publication of a design is equally part of the prior art base as a late 20th century publication.

There is no difference in the prior art base for proceedings before the Registrar, and proceedings before a court. However whereas a court will only consider material put before it by the parties, the examination function will result in the Registrar making her own investigation of the prior art base to assess whether the design is new and distinctive.

Comment: The prior art base under the 2003 Act is considerably larger than the equivalent concept under the 1906 Act.