A claim for indefinite dimensions is typically aimed at the length and/or width of the product. These are represented using break lines, and it should be obvious that this is the purpose of the lines and not as visual features of the design. Break lines are displayed using a single or double line including a jagged, sinusoidal or zigzag feature.

Examples of different products that include claims for indefinite dimensions, shown using break lines, are provided further on.

Subsection 6(3)

The design of a product with one or more indefinite dimensions is capable of being protected as long as one of the following categories contained in s 6(3) applies:

The cross-section of any indefinite dimension shows that the design either is fixed or varies according to a regular pattern.
All the dimensions of the item remain in proportion.
The cross-sectional shape is the same throughout, regardless of whether the dimensions of that shape vary according to a ratio or series of ratios.
The item has a pattern or ornamentation that repeats itself.

Things with indefinite dimensions can include:

simple extrusions where the shape or dimension of the item does not vary in cross-section (e.g. a pipe)
products that have a repeating pattern (e.g. textiles).

Background and history for designs with indefinite dimensions

Background to the concept of indefinite dimensions can be found in the Designs Australian Law Reform Commission (ALRC) Report 74. Some relevant details from this report have been reproduced below.

A number of submissions were made on this issue and some stated that products that have indefiniteness in a different direction to the length should be afforded protection or that protection should not be restricted to products that have repeating or recurring elements in the design.

Similarly, a requirement that there be a regular cross-section was also seen as unduly restrictive, as it would not allow for extrusions with holes at regular intervals throughout the length. Provided the holes were repeated at regular intervals then the design of the extrusions should be able to be registered.

One submission argued:

Indefinite length and width should only be permitted where a design element such as a pattern repeats itself throughout the length and width of the product
Products of indefinite length should be protected if the cross-section of the product is constant throughout its length, or the width and height remain in a proportional relationship
Where a particular feature is repeated at regular intervals along the indefinite length, that also should be protectable.

The ALRC agreed with this submission and all elements above were included in a new and more specific provision identifying what is protectable where there are one or more indefinite dimensions.

Indefinite Dimensions and Formalities Assessment

A design application must include any indefinite dimension(s) in a clear and readily understandable manner; see s 7(15) Designs Formal Requirements Instrument.

Where an application is submitted that claims a thing of indefinite dimension(s), and there is uncertainty as to:

what the representation(s) are attempting to assert as meeting s 6(3), or
that the representation(s) can and are likely to be interpreted in more than one way

The formalities officer may query the representations with the applicant, asking for further information or an indication from the applicant as to which s 6(3) scenario the application fits into.

The design of a product with one indefinite dimension, for example varying length but with the same cross section throughout, should be able to be protected.

The design of a product with more than one indefinite dimension should be able to be protected provided that at least one of the following applies to the product or that part of the product which is of indefinite dimension:

a cross section taken across any indefinite dimension is fixed or varies according to a regular pattern – s 6(3)(a)
all the dimensions remain in proportion – s 6(3)(b)
the cross-sectional shape remains the same throughout, whether or not the dimensions of that shape vary according to a ratio or series of ratios – s 6(3)(c)
it has a pattern or ornamentation that repeats itself – s 6(3)(d).

Practically speaking the provisions of s 6(3) were drafted to cover a range of situations, such as:

the indefinite dimension applies to the entire length of the product – such as simple extrusion
the indefinite dimension applies to only part of the article – such as the body-section of a bottle, or the panel section of a door
the indefinite dimension applies to part of an article in two dimensions – such as the width and height of a window frame.

More detailed information about each of the s 6(3) criteria is included below from Parts 10.9A - 10.9D.

10.9A. Design either is fixed or varies according to a regular pattern

A product design with indefinite dimensions should be able to be registered as long as the cross-section of any indefinite dimension shows that the design either is fixed or varies according to a regular pattern.

This category includes for example:

simple extrusions that do not vary in cross-section shape or dimension
extrusions that vary in the cross-sectional shape or dimension but have a repeating pattern along the indefinite dimension. Newness and distinctiveness is assessed on the repeating pattern along the length rather than on the shape of the cross-section
things where part of the thing along that dimension is indefinite – such as a midsection of indeterminate length. In this situation the requirement regarding variation according to a regular pattern applies to the section that is indicated to be of indeterminate length (the midsection).

A product that is indefinite in 2 or more dimensions will not fall into this category if the cross-section in one dimension intersects with the cross-section in another direction. This is because the cross-section in at least one of those dimensions is not fixed.

Example: Design is fixed (Design 202013592)

The cross-section across the indefinite dimension (length) is limited to a fixed shape.

Example: indefinite dimension applies to part of product only (Design 201912617)

Only the shank is of indefinite length. It expands in size from what is shown in the representation (becoming longer).

Example: Design varies according to a regular pattern (Design 200912161)

The cross-section across the indefinite dimension (length) varies according to a regular pattern that is seen running along the indefinite dimension. The cross-section does not remain fixed because there are holes present in the roof of the design. However, this variation brought about by the holes does accord to a regular pattern along the indefinite dimension. The cross-section will differ along the indefinite dimension depending on whether there is a gap at the top due to a hole being present.

10.9B. All dimensions remain in proportion

This provision refers to ‘all’ dimensions, so products falling into this category must have more than one (indefinite) dimension. A product design with indefinite dimensions should be able to be registered as long as the cross-section of any indefinite dimension shows that all dimensions remain in proportion.

The category refers to ‘all’ dimensions, so the item must have more than one dimension. It excludes a single indefinite dimension.

This category includes:

things where both the width and height are indeterminate
things where the cross-sectional width and height vary randomly along its length but remain in constant proportion.

Example: Dimensions remain in proportion (Design 201913195)

The representation is interpreted as expanding and contracting proportionately. The product has an indefinite width and height, but these vary in proportion. This means that whilst the product may vary in size, the shape and configuration seen above must be retained.

The representation should be interpreted in a manner that gives validity (i.e. that the marked dimensions expand and contract in a corresponding manner) unless there are clear issues with that interpretation or uncertainty as to what is being claimed. Where there is uncertainty as to what visual features expand and contract, and what the line detail included in a representation (such as a break line) signifies, this should be queried.

10.9C. Cross-sectional shape is the same throughout

A product design with indefinite dimensions should be able to be registered as long as the cross-sectional shape is the same throughout.

This category would include, for example, a tube where the cross-sectional shape remains the same but the width and height of the tube vary along its length.

There is no requirement for a repetitive pattern along the length (unlike where a cross-section taken across any indefinite dimension is fixed or varies according to a regular pattern). This category does not apply to extrusions where there are holes or something similar along the length of the extrusion.

Because there is no repetition along the indefinite length, there is no relevant pattern or ornamentation in that dimension. So the newness and distinctiveness must be found in the cross-sectional shape.

Example: cross-section oval shape remains the same throughout, whilst the dimensions along the indefinite length vary according to a series of ratios (Design 201415834)

The dimensions (height and width) vary along the indefinite length – the ‘ribbing’ effect. Dimensions remain in proportion, resulting in the oval shape being maintained along the indefinite length.

10.9D. Pattern or ornamentation that repeats itself

A product design with indefinite dimensions should be able to be registered as long as it has a pattern or ornamentation that repeats itself.

This category typically includes textiles and other sheet materials that have repeated surface decorations. For an item to be placed into this category, the representations must show at least one pattern repeat.

There are some issues involved in classifying items into this category:

In the formalities assessment, it is difficult to correctly identify how many products are present in the application.
In examination for certification, newness and distinctiveness cannot be found in the relative size of the indefinite dimension.

Example: Product with indefinite height and width but with repeating pattern (Design 201911211)

This representation shows indefinite height and width, with a repeating pattern in both directions. The claimed pattern or ornamentation is intended to repeat when applied to the full dimensions of the product bearing the design. The representation(s) must show at least one pattern repeat for this to apply.

Indefinite Dimensions and Examination

An examiner will assess what attention a familiar person / informed user would pay to dimensions that are claimed as being indefinite. An indication of indefiniteness, including both size and inclusion of visual features should itself not equate to a determination of newness and distinctiveness. Indefinite dimensions and indefinitely repeating patterns are not considered visual features. The design as a whole needs to be considered as part of determining overall impression.

Where a representation purports to indicate indefiniteness, but the registration does not fit within the criteria of s 6(3), the thing is still a product capable of registration. However, the representation must be interpreted on the basis of the relevant dimension(s) not being indefinite.

See Assessing newness and distinctiveness for more information on assessing items with indefinite dimensions.