UTILITY MODEL PROTECTION THROUGHOUT THE WORLD
UTILITY MODEL PROTECTION THROUGHOUT THE WORLDJohn RichardsLadas & Parry LLPIntroductionIn a world where obtaining value for money has become even more importantthan in the past, it may be useful to look for alternatives to the traditional way of doingthings. For some types of invention, use of a petty patent or utility model as a means ofprotection may be a useful alternative to patent protection in many countries. Obtainingprotection this way is often much less expensive than proceeding through the traditionalpatent route and, as noted below, in several countries has an advantage in its own right.Such protection can be obtained either by direct filing or by use of the PatentCooperation Treaty.1 In many cases, as noted in the tables at the end of this paper,protection may be obtained without the need for substantive examination and often alower standard of inventiveness is required for valid protection than is the case forpatents.1PCT Article 2(ii).2010 Copyright. John Richards.
The term "petty patent" is no longer used anywhere in the world, its use inAustralia having been superseded by the term “innovation patent” in 2001.2 Recentlyhowever, the term has acquired a secondary meaning, namely any type of protectionthat is provided for inventions that do not qualify for full patent protection. By far, thebest known of these are utility models, although other terms such as utility innovations,utility solutions and short-term patents are used in some countries.3Until the 1990's, utility model protection was regarded as being something of acuriosity in the intellectual property world. It is true that the Washington revision of theParis Convention in 1910 had recognized utility models as a species of industrialproperty right, but in his 1975 book on National and International Protection of Patents,Trademarks and Related Rights4, Dr. Stephen Ladas listed as having this form ofprotection only in Brazil, Germany, Italy, Japan, the Philippines, Poland, Portugal, SouthKorea, Spain and Taiwan. Since then, however, many countries have adoptedprotection of this type or some other form of "second tier" protection for useful articles orother inventions.Historical BackgroundBefore looking at the current situation, it is worthwhile to briefly review thehistorical background of this type of protection.2Petty patents were in fact rarely used in Australia. Their only advantage was that onlypublications or acts within Australia were considered when assessing novelty. However, theother standards that had to be met were the same as those for ordinary patents and pettypatents lasted only for six years. The new innovation patent is intended to be more useful forsmall enterprises in that the standard of inventiveness required is lower than that required forordinary patents (what is required is an innovation that makes a “substantial contribution to theart” - there is no need for it to be non-obvious). The term is now eight years. In a decision ofJuly 3, 2009 in Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd the Full Federal Court held that inconsidering what degree of inventivity (innovative step) was required for an innovation patentfound that when assessing innovative step, the Court must compare the invention as claimedwith each prior disclosure and identify whether any variations between the claimed inventionand the prior disclosure make a substantial contribution to the working of the invention. If it did,the innovation was protectable. The Full Court also accepted the trial judge’s view that“substantial” in this context means “real”, or “of substance”.In addition to patent-type systems, it should be borne in mind that protection for some formsof this type of innovation may also be protectable in other ways. For example, by copyright ordesign protection in countries such as France, where relatively broad protection is possibleunder such laws or by protection against "slavish imitation" as is provided in many countries inContinental Europe, for example, by marketing laws in Scandinavia.34Harvard University Press, 1975
The history of utility model protection must be regarded as starting with theGerman Law of June 1, 1891. German Patent Law at the time (and indeed up till 1978)required that for patent protection an invention must not only be new but also representa technical step forward in the art [technischer Fortschritt]. This requirement left minorinventions such as those relating to tools and implements, which were practical anduseful, but did not represent a technical step forward in the art, without protection.Hence the need for a new law, which provided limited protection for simple devices butdid not protect methods or compositions. Within fifteen years, Japan, whose IntellectualProperty Laws, and indeed whose entire Civil Law System, was largely modeled on thatof Germany, followed suit. There were, however, from the beginning significantdifferences between the German and Japanese laws. In Germany, protection wasinitially relatively short (three years) and rights were granted fairly promptly withoutexamination whereas in Japan protection was always for a longer period than inGermany but, until the end of 1993, examination was required as to whether theapplication for protection met the standards required by the law. Another difference wasthat for most of the century, the German Patent Law contained no specific requirementfor an inventive step for patentability, the Patent Office and courts simply inferring thatsuch a step was required by the fact that patents were to be granted for "inventions".Thus, as a practical matter, it was possible for different standards of inventiveness to beapplied to consideration of protection for patentable inventions and those protected onlyby a utility model.5In Japan, the statute itself spelled out the difference in that to be patentablesomething had to be a "highly advanced creation of technical ideas", whereas forprotection as a utility model all that is required is "creation of a technical idea utilizingnatural laws". Thus, the determining factor as to whether something was capable ofprotection by a patent or rather than by a utility model was whether the idea was "highlyadvanced". The Japanese Patent Office therefore examined utility model applicationslooking for a measure of inventiveness, but a lower one than was required for patents.6This led to the possibility that if one failed to convince the examiner that a sufficientdegree of inventiveness had been demonstrated to permit patent protection, theapplication might, in cases where the subject matter was appropriate, be converted into5The difference has now been codified. A German patent requires erfiinderische Tatigkeit,whereas a utility model requires only erfinderischer Schritt. Unfortunately, the normal Englishtranslation of the former is inventive activity and of the latter is inventive step, something thattends to cause confusion in view of the French and English texts of the European PatentConvention using the words inventive step as the equivalent to the first of these German terms.6Japanese Utility Model Law Article 3(2) parallels Article 29(2) of the Patent Law inprescribing that a utility model shall not be granted when the device claimed could “veryeasily be made” in light of the prior art, contrasting with the requirement of the patentlaw that inventions cannot be patented if “easily” made in the light of the prior art.According to the JPO Guidelines, something is not “very easily” made if foreign prior artis needed to make it, if more than two references are needed or if the prior art referenceis in a different technological field.
one for a utility model. This feature was copied in other systems where differentdegrees of inventiveness were required for patent and utility model protection.One of the raisons d'etre of the German Law, namely the fact that utility modelsdid not have to show technical advance, became moot with the adoption of theEuropean Patent Convention in 1978. In harmonizing its patent law with those of therest of Europe, Germany gave up its requirement for technical advance. Thisharmonization also required Germany to give up a feature that was regarded as beingimportant by many in the German profession and industry, namely the six-month graceperiod in respect of publications by an inventor. However, no European harmonizationexisted for utility models and Germany was therefore permitted to retain a grace periodfor this form of protection. The existence of this grace period gave utility modelprotection in Germany a new lease on life and lead to a broadening of the concept ofwhat could be protected by utility models from articles having a defined shape orstructure to all tangible items including chemicals and electrical circuits. Thus, today theonly form of invention which is not protectable by a utility model in Germany is one thatis a process or method. Even this limitation was cut back in 2005 when the GermanSupreme Court held that use claims, including second medical use claims, werepermitted in utility model applications.7 Many of the new laws which have come intoeffect during the 1990's borrowed this concept from Germany.The Current Situation World WideTable I sets out some basic facts about secondary protection in most countriesthat have such laws, including indications as to how long the countries have had suchlaws, the name given to the protection (not all countries use the term "utility model"), theduration of protection and, as an indication of the usefulness of such protection, thenumber of applications filed in 1999, the most recent year for which statistics areavailable from WIPO. A summary of the most important features of the substantivelaws in these countries is set out in Table II.A comparison of Tables I and II shows that the countries in which the mostwidespread use of utility model protection is made are countries where there aresignificant differences between the standards of invention required for patents and utilitymodels namely: Japan, China, Korea, Taiwan and Germany. In Germany there areadditional differences between patents and utility models, namely the grace period asnoted above and secondly, that for utility models prior to public use outside Germanydoes not constitute a bar to protection. Furthermore, in Germany procedures forenforcement of utility models and patents differ. In the case of an infringement action,the defendant can plead that the utility model is invalid and the courts can in effectamend the scope of protection in the light of the art cited by the defendant.7Decision X-ZB 7/03 of October 5, 2005. Following changes to implement the EU’sBiotechnology Directive, however, biotechnology inventions cannot be protected by a utilitymodel.
As can be seen from the tables, countries where there is a lesser distinctionbetween requirements for patent protection and for utility model protection have tendedto result in few utility model applications being filed. It is however, noticeable from thestatistics compiled by WIPO, that in all countries, utility models, unlike patents in mostcountries, are much more utilized by local residents than by foreigners. One reason forthis is that costs for utility models tend to be less than those for patent applicationsbecause in many countries (although as shown by the table not all by any means) nosubstantive examination is carried out for utility model applications. Dispensing withexamination seems to be an increasing trend, although Korea at one point abolishedthis requirement but has now re-introduced it. This lack of examination also has thepotential advantage of accelerating the grant of an enforceable intellectual propertyright. One consequence of a lack of examination, however, is a feeling that protectionshould not be granted for the full term normally granted for patents and so utility modelprotection is generally for a shorter period than that granted for a normal patent.In many countries, but not for example, China, it is possible to convert a patentapplication into a utility model application at any time during pendency of the patentapplication. For example, if one encounters an obviousness objection where a lowerstandard required for protection as a utility model would be met even though one cannotsatisfy the Examiner as to patentability. In France, failure to request examination of apatent application will automatically convert the application into one for a utilitycertificate. In general, it is not possible to secure protection for the same invention byboth patent and utility model rights (Germany is an exception). Many countries,including Japan, Korea (if examination has not already been carried out), France andChina require that a report on the novelty of the model must be carried out before aninfringement action can proceed. In Germany, this is not obligatory but can berequested by the right holder or a third party. As noted above, however, in Germanyissues of the valid scope of protection can be considered by the court hearing theinfringement action.Typically therefore utility models differ from patents in one or more of thefollowing respects: Standard of invention required. The basis on which novelty is assessed. Whether examination is required (and consequent speed of grant ofan enforceable right). Costs. Duration of protection.Superimposed upon this is the fa ct that the classes of subject matter which may beprotectable by a utility model or other form of secondar y protection may in manycases be much narrower than the definition of patentable subject matter for normalpatents.Conclusion
The fifteen years up to 2000 saw the introduction of utility model protection in at leasttwenty-five jurisdictions which did not have them previously. Since then, however, thepace has slackened. Whether the current economic morass will lead to renewedinterest in creating such protection by countries that do not currently have this type ofprotection remains to be seen. Whereas the early trend seems to have been to havedifferent standards for novelty between patents and utility models, particularly incountries having an absolute novelty standard for patents, the current trend seems to beaway from this and towards only requiring a reduced level of inventiveness for utilitymodel protection.From the applicant’s point of view, however, in many countries utility model protectionprovides a relatively low-cost means for obtaining protection for some types of inventionin a large number of countries.TABLE ICOUNTRYDATE OFFIRST LAWDURATIONOFROTECTIONNAMENUMBER OFAPPLICATIONSSUBSTANTIVEFILED 2006EXAMINATIONANDEAN Community199210 yearsUtility ModelyesARGENTINA199610 yearsUtility Modelyes - deferredAUSTRALIAAUSTRIA1979/200119948 years10 yearsovation PatentnoUtility Modelbut there is a searchBELGIUM19876 yearsort Term 19928 years10 years10 years10 yearsUtility ModelUtility ModelUtility ModelUtility ModelnoyesyesCHILE199110 yearsUtility ModelyesCHINACZECH ATEMALAHUNGARYINDONESIA1985199219911993196810 years10 years10 years10 years6 yearsUtility ModelUtility ModelUtility ModelUtility Modelility Certificatenonono1891198819861992199110 years7 years10 years10 years5 yearsbrauchsmusterUtility ModelUtility ModelUtility Modelimple PatentnonoyesIRELAND199210 yearsort Term PatentnonoyesITALY193410 yearsUtility ModelnoJAPANKOREA19051961ot 15 yearsot 15 yearsUtility ModelUtility ModelnoyesMALAYSIA198615 yearslity InnovationyesMEXICO199110 yearsUtility ModelyesNETHERLANDS19956 yearsort Term PatentnoOAPI197710 yearsUtility ModelPANAMA199610 yearsUtility ModelPERU199210 yearsUtility 766581172852681096532908396Limitedished for oppositionNo58
PHILIPPINES194715 yearsUtility ILAND192419401992199219291944199910 years15 years8 years10 years10 years12 years10 yearsUtility ModelUtility ModelUtility ModelUtility ModelUtility ModelUtility ModelPetty patentyesyesnononoyesyesTURKEY199510 yearsUtility ModelnoUKRAINE19938 yearsUtility ModelnoURUGUAY197610 yearsUtility ModelnoVIET NAM199510 yearstility Solutionyes67810196993432824substantial use30118171Other countries providing for utility model protection include: Armenia, Belize, Ecuador, Estonia, El Salvador, Honduras, Kazakhstan, Kenya,Kyrgyzstan, Macao, Trinidad and Tobago, Uganda, Uzbekistan and Venezuela. Typically protection is for the same types of invention as arepatent-eligible (although in Honduras, Kenya and Macao at least protection is confined to tangible things) and does not require that there beany inventive step involved.
TABLE IICOUNTRYAN CommunityRGENTINAUSTRALIANOVELTY REQUIREMENTsame as patentsSUBJECT FOR PROTECTIONCOMMENTSl, implement, mechanism, or other object or part thereoe period for inventor’s disclosure outside Arking instruments, devices, objects used for practical wsame as patentslower standard of inventiveness than foe patentssame as for patentslower standard of “innovation” than regular patentsvices, machines, processes, and programming logic, thelower standard of inventiveness than foe patentsanimalssame as for patentssame as for patentsAUSTRIA6-month grace periodBELGIUMsame as patentsBRAZILsame as patentstool, working instruments, utensils, etc.BULGARIACHILECHINAsame as patentssame as patentssame as patentsshape, etc. of products, tools, apparatus, etc.instruments, apparatus, tools, devices, partsshape or structure of productInventive step not requiredparently a lower standard of inventiveness than for patenlower standard of inventiveness than foe patentsCH REPUBLICmonth grace period for own publicationsDENMARKFINLANDFRANCEGERMANYGREECEsame as patentsall tangible items including chemicalsard of inventiveness than foe patents, cumulative protectiosame as patentsshape or design of a devicelower standard of inventiveness than foe patentssame as patentssame as for patentsNo coexistance with full patentsoutside Germany not a bar; 6-month graces except processes and methods (note new uses are coard of inventiveness than foe patents, cumulative protectiosame as patents3D object with definite shape or formof design law leads to use of Utility Model Law as substiUATEMALAall tangible items including chemicalssame as patentsdevice, tool, implement, mechanism, etc.HUNGARYuse outside Hungary not a barform, structure, etc. of an objectNDONESIARELANDsame as patentssame as patentssame as for patentssame as for patentsITALYsame as patentsmachines, machine parts, tools, etc.JAPANKOREAsame as patentssame as patentsshape, construction, etc. of an articleshape, construction, etc. of an articlesame as patentssame as patentsobjects, utensils, apparatus or toolssame as for patentslocal novelty only requirednon-inventive new form, etc. of tools or productssame as patentsshape, construction, etc. of an objectsame as patentsuse outside Russia not bartools, utensils, containers, etc.construction of production ovelty exam required before suitrequired before suit; lower standard of inventiveness thalower standard of inventiveness than foe patentsinventive step requiredsimilar to patentsmonth grace period for own publicationsunlike patents; local novelty onlysame as patentssame as patentstwelve month grace periodno requirement of inventive stepnovelty exam required before suit can be broughtlower standard of inventiveness than foe patentsno requirement of inventive stepall tangible Items including chemicalsutensils, instruments, tools, apparatus, etc.shape, structure or construction of articlesimilar to patenrtsg patentable except for processes and chemical producUKRAINEsame as patentsdevicesURUGUAYSimilar to patentstools, working instruments, utensils, etc.VIETNAMsame as patentsanything patenta
Such protection can be obtained either by direct filing or by use of the Patent Cooperation Treaty.1 In many cases, as noted in the tables at the end of this paper, protection may be obtained without the need for substantive examination and often a lower standard of inventiveness is required for valid protection than is the case for patents.
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i. Definition of Utility Mapping. ii. History of Utility Mapping. iii. Objectives of Utility Survey & Mapping in Malaysia. iv. The scope of Utility Mapping in standard guidelines for underground utility mapping. v. The role of utility owner, surveyor and JUPEM in underground utility mapping. 1 UNDERSTAND THE UTILITY QUALITY LEVEL ATTRIBUTES i.
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