D08 Searching

Date Published

The most important task in the examination of a design is the assessment of newness and distinctiveness. While the current Designs Act does not mandate a search, the examiner must necessarily place him- or herself in a position to be able to assess the newness and distinctiveness of a design. To achieve this, the examiner will need to form an appreciation of the state of development of the prior art base for the design [s.19 (2)(a) of the Designs Act 2003 (Cth)] noting that the assessment is made by applying the standard of the informed user [s.19(4)].

Naturally, all of the factors in s 19 will be considered in formulating and executing a search strategy.

In practical terms an examiner cannot be expected to access every document of the prior art base as this task would be extremely expensive and time consuming (assuming it is possible!). For this reason, documents provided by the person requesting examination [pursuant to s 64(2)], and documents provided pursuant to s 69 will also be considered during examination.