Patent Protection of Good Product Design to Protect Profit Margins

25 Jan 11

Additive manufacturing is a great way to turn designs into usable products but patent protection may be needed to stop others copying it. Protecting your intellectual property is essential but Australia's patent system is under utilised.

Additive Manufacturing

Additive Manufacturing (AM), is the name given to an exciting range of non-conventional manufacturing techniques that can be applied to produce profitable products. Conventionally, product components have been formed by removing material (eg machining) or forming material (eg casting). Additive Manufacturing involves building product components by material addition, often layer by layer.

In the past AM has been applied to produce prototypes and short production runs. As AM technology advances, increasingly larger production runs are economical.

AM offers many advantages: tooling is not required, product design can be changed at a whim and is not constrained by coring considerations or other conventional limitations; complexity is free. Exploiting these new design freedoms can lead to dramatically reduced part counts and superior products, eg a heavy plate can be economically replaced by a stronger and lighter integrally formed covered lattice.

AM is an example of good product design that can lead to profit margin. Like all good product design, this margin is unlikely to last if your competitors release similar products.

An integrally formed hydraulic valve housing manufactured using an additive technique

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Intellectual Property

Intellectual property is the name given to the ownership of a ‘creation of the mind’, eg the application of AM to a particular product is a creation of the mind that you might seek to own.

Generally speaking, in the manufacturing context, you must take action to retain ownership of your intellectual property. It is not an infringement of copyright to copy a product once it is in production, aside from a few rare exceptions. Patents, design registration and trade mark registration are available to protect intellectual property relating to manufactured products, eg you could seek patent protection to stop others copying your AM product.

The Australian patent system is underutilised. Australian manufacturers are often held back by a false belief that their products and processes are ‘not clever enough’ to qualify for patent protection.

To qualify for a standard patent the invention must have an ‘inventive step’. This is a surprisingly low standard: many rather mundane items are validly patented.

An inventive step is not required to qualify for an innovation patent. Instead the invention must have an ‘innovative step’. This is an even lower standard. It requires a variation from what has gone before that makes a ‘substantial contribution to the working of the invention’. In a recent court decision, adding a taper to the end of a post to make it easier to drive in to the ground was held to qualify.

As the law currently stands, an Australian innovation patent may well validly cover the use of AM to make a particular product if this use was not previously publicly known. Such a patent could be used to prevent others using AM in Australia to make the product, and/or to stop others importing product made elsewhere using AM. Physical changes in the product, eg for reduced part count, would improve the likelihood of obtaining valid protection.

If pursuing patent or design protection is of interest it is important to keep the invention or design secret until an initial application for protection is filed.

This article was written by Ben Mott, Patent Attorney, Melbourne.

Ben Mott would like to thank Formero for their kind assistance with the preparation of this article.

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