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A Design Must Be New

Written by Jane Coyle on 29 February 2008

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A design must be new (section 1B(1), RDA). An identical design (or a design differing in immaterial details only) must not have been disclosed to the public anywhere in the world prior to the relevant date (which will usually be the date of application for registration) (section 1B(2), RDA). There are some circumstances which will not constitute disclosures for this purpose however (section 1B(6), RDA.

The disclosure could not reasonably have become known in the normal course of business to persons specialising in the sector concerned. For example a disclosure in a museum which is unlikely to be known in the course of business is not therefore relevant. The disclosure is unlawful because, for example, it is in breach of a confidentiality agreement, or the result of theft. Lastly the disclosure is within the 'grace period' allowed to the designer. Since 1999, there has been no requirement for the Designs Registry to perform an automatic search on novelty grounds at the examination stage (Designs Registry notice, Cessation of Novelty Search, Section 3(3) of the Registered Designs Act 1949, published 21 April 1999). In practice, an examiner would only raise an objection based on lack of novelty if he was aware of a prior publication of the same design, and had some documentary evidence on which to base the objection. However, this requirement for a substantive examination of novelty has been removed.

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