For centuries, those in the architectural, building and construction industries have relied on copyright law as the primary means for protecting their intellectual property. This is hardly surprising, as copyright law protects all original literary and artistic works.1
Architectural plans, buildings and models of buildings are recognised categories of artistic works capable of copyright protection.2
Indeed, as recently as in December 2006, the High Court of Australia decided a case that involved the issue of copyright in architectural plans (Concrete Pty Ltd v Parramatta Design Developments Pty Ltd  HCA 55).
Copyright law however is not the only form of intellectual property protection upon which those in the architectural, building and construction industries can rely. This article discusses patent law protection, which has recently been attracting considerable attention in architectural circles.
The limitations of copyright law
At first blush, copyright law seems perfectly suited to the protection of the intellectual property created by the architectural, building and construction industries. It offers automatic protection, without the need for registration, to all original architectural plans, buildings and models of buildings.
It is the very protection that copyright law offers however that is in some ways its weakness. For copyright law protects the original expression of an idea, and not the idea itself. Thus, if a third party reproduces another’s original idea but does not substantially reproduce the manner in which the other party has expressed that idea, copyright law will not provide a means for preventing that reproduction, even if the expression of that idea is protected by copyright.
Patent law has a role to play
To protect an original idea or concept, no matter how it is expressed, you must turn to patent law.
A patent is a temporary monopoly right granted by the Commonwealth Government for new, inventive and useful things, methods or processes.3
There are two types of patents in Australia:
- standard patents, which have a life of 20 years; 4 and
- innovation patents, for inventions that are not sufficiently inventive to meet the inventive threshold required for standard patents, with a duration of up to eight years.5
Patent protection is not automatic. It does not arise immediately upon conception of the invention that is the subject of the patent. Rather, it depends upon the filing of a detailed patent application and the decision by IP Australia, the body responsible for the grant of patents in Australia, that the invention that is the subject of the patent application satisfies the requirements for patentability – that the invention is new, is inventive.6, and is useful. There is also a requirement that the invention be a manner of manufacture, essentially, that it be patentable subject matter.
The right granted by a patent is legally enforceable and gives the owner of the patent the right to exclude others from exploiting in Australia the invention claimed in the patent during the life of the patent.7
Thus, patent law provides those in the architectural, building and construction industries the means for protecting their novel, inventive/innovative and useful ideas and concepts.
Patenting building concepts
At least one prominent European architect has already turned to patent law to protect what he considers to be a patent-worthy architectural concept. In 2003 and 2004, Swiss architect Hans Zwimpfer filed patent applications in Europe and the United States for a stacked dwelling with a single storey dwelling part and a two storey dwelling part, which he refers to as PILE UP.8
Specifically, Zwimpfer is seeking to patent the following concept:
"Residential building with staggered dwellings based on the construction with a building shell and with a design which is characterized by columns and load-bearing beams and bears floor areas and the roof, and with space available, in staggered form, for dwellings with an open plan and a living area which can be adapted to individual requirements for each residential unit, characterized in that a dwelling comprises a single-storey dwelling part and a two-storey dwelling part, the surface area of the single-storey dwelling part having at least the surface area F in m.sup.2 of the surface area of the two-storey dwelling part, and the latter comprising an outdoor area, which is directed towards the facade, and an indoor area."9
Zwimpfer’s patent application has sparked considerable controversy in architectural circles. Many claim that Zwimpfer’s concept is not novel. If this is the case, then the relevant patent offices will not grant Zwimpfer a patent. Regardless of whether Zwimpfer’s concept is legally patentable, others have objected more generally to patents in the architectural industry. Concern has been expressed that patenting architectural concepts will stifle developments in the architecture industry and impede free competition to a point where every new design could be liable for breaching an existing patent. Such arguments have long been made against patents in other industries without success. They are unlikely to be successful in the architectural, building and construction industries.
Those in the architectural, building and construction industries have traditionally relied on copyright law to protect their intellectual property. In the right circumstances, however, a patent may be a better choice for the protection of that intellectual property.
1 Section 32, Copyright Act 1968 (Cth).
2 For example, see the definition of “artistic work” in section 10 of the Copyright Act.
3 Section 18, Patents Act 1990 (Cth).
4 Section 67, Patents Act.
5 Section 68, Patents Act.
6 Inventiveness is a requirement for a standard patent. For an innovation patent, this requirement is reduced to one of innovativeness.
7 Section 13, Patents Act.
8 For example, see United States Patent Application No. 20040221519 and European Patent Application No. 1455033.
9 Claim 1.
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