Design Validity Opinions

Highly skilled and qualified patent attorneys, offering personal and commercially oriented expertise regarding design rights prosecution, opposition and defence.

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What Is A Design Validity Opinion?

A design validity opinion is a process through which a design application or registration is examined by an expert patent attorney to decide if a court will uphold any approved design rights as valid.

They are a valuable tool that can be used both offensively and defensively to protect and defend a company’s intellectual property rights.

A design invalidity/validity opinion is formed through a detailed search and review of:

- Design rights databases both in Australia and overseas
- Non-design-specific literature and various art-specific publications, journals and databases
- Associated keywords and classification areas
- Identified prior art and more

It is similar to an examination performed by IP Australia as part of the process for securing design rights but may go into more detail or search a wider scope of resources.
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When Is A Design Validity Opinion Necessary?

Typically, a design validity opinion is sought by those suing or being sued for design rights infringement or those seeking to monetise their design registration.

Where there are accusations of infringement, seeking an invalidity opinion on an accuser's design rights may help you defend yourself successfully or reduce damages where liability is established.

Likewise, seeking validity opinions on your held design rights can also be very useful for understanding any potential weaknesses making them useful for deterring or defending against infringers. Knowing any weaknesses can also assist in developing the correct strategy for enforcing your design rights.

Where monetisation is the goal, arranging a design validity opinion can help you establish certain aspects of a Freedom to Operate (FTO) search and may help determine a prior art base. This could be useful when you conduct an FTO to avoid accidental infringement on another’s rights.
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Can I Prepare A Design Validity Opinion Myself?

Without significant expertise and access to specific resources, it is not possible to prepare a legally defensible validity opinion.

A lack of understanding about the Designs Act, where to search out information, how to search correctly or what is required to demonstrate validity/invalidity could make your opinion insufficient and unable to be used as intended. Without an understanding of case law, the act and regulations, it is simply not possible to accurately determine whether a design registration is valid or invalid and therefore it is advisable to engage an expert attorney to prepare this.

Not engaging an expert leaves you vulnerable to infringement of your rights as you would not have an understanding of any gaps or weaknesses, as well as increasing the risk of accidentally becoming an infringer yourself - all with no legally recognised backup plan.

For these reasons, engaging a patent attorney as a qualified expert in design rights to undertake a design invalidity opinion is strongly recommended.
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How A Patent Attorney Can Help

A patent attorney is a highly skilled and recognised legal expert who specialises in all areas of intellectual property, including design rights.

This makes them best placed to prepare design validity opinions as they know exactly how to examine your design using detailed search techniques and a wide range of resources.

Where any weaknesses or vulnerabilities are discovered, they are also the ideal point of contact for working out how to resolve these or leverage them depending on the situation at hand.

Able to inform and advise, a patent attorney, through a professionally prepared design validity or invalidity opinion, can give you the confidence to defend your rights or monetise them successfully with less associated risk.
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IP Guardian - Skilled Design Validity Opinion Attorneys

Offering unmatched advice and guidance, backed by decades of combined experience, IP Guardian’s attorneys are experts in the preparation of design validity or invalidity opinions.

Whether you require an opinion as part of establishing FTO, reassuring investors or defending against infringement, we can help.

Our detailed reporting is both affordable and accessible, providing valuable legal advice with no compromises on the quality of service or results. Ensuring you are well-informed and prepared to use and retain your valuable IP.

Focused on integrity and facilitating greater success for Australian innovators, we’re the team you can count on to assist with every aspect of design rights.
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