| (ii) | not commonplace in the art in question, |
may, in the prescribed manner and on payment of the prescribed fee, apply for the registration of such design.
| (2) | A design shall be deemed to be new if it is different from or if it does not form part of the state of the art immediately before the date of application for registration thereof or the release date thereof, whichever is the earlier: Provided that in the case of the release date thereof being the earlier, the design shall not be deemed to be new if an application for the registration of such design has not been lodged— |
| (b) | in the case of any other design, within six months, of such release date. |
[Sub-section (2) amended by section 70 (a) of Act No. 38 of 1997.]
| (3) | The state of the art shall comprise— |
| (a) | all matter which has been made available to the public (whether in the Republic or elsewhere) by written description, by use or in any other way; and |
| (b) | all matter contained in an application— |
| (i) | for the registration of a design in the Republic; or |
| (ii) | in a convention country for the registration of a design which has subsequently been registered in the Republic in accordance with the provisions of section 44, |
of which the date of application in the Republic or convention country, as the case may be, is earlier than the date of application or the release date contemplated in subsection (2).
[Paragraph (b) substituted by section 70 (b) of Act No. 38 of 1997.]
| (4) | Designs for articles which are not intended to be multiplied by an industrial process shall not be registrable under this Act. |
| (a) | feature of an article in so far as it is necessitated solely by the function which the article is intended to perform; or |
| (b) | method or principle of construction, |
shall afford the registered proprietor of an aesthetic design any rights in terms of this Act in respect of such feature, method or principle.
| (6) | In the case of an article which is in the nature of a spare part for a machine, vehicle or equipment, no feature of pattern, shape or configuration of such article shall afford the registered proprietor of a functional design applied to any one of the articles in question, any rights in terms of this Act in respect of such features. |
| (7) | In the absence of an agreement to the contrary, joint proprietors may apply for the registration of a design in equal undivided shares. |
