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Utility model

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Intellectual property
Related topics
Higher categories:
Property and Property law

A utility model is a patent-like intellectual property right to protect inventions.[1] This type of right is only available in some countries.[1][2] Although a utility model is similar to a patent, it is generally cheaper to obtain and maintain, has a shorter term (generally 6 to 15 years), shorter grant lag, and less stringent patentability requirements.[1][3] In some countries, it is only available for inventions in certain fields of technology and/or only for products.[1] Utility models can be described as second-class patents.[4]

Definition and terminology

A utility model is a statutory exclusive right granted for a limited period of time (the so-called "term") in exchange for an inventor providing sufficient teaching of his or her invention to permit a person of ordinary skill in the relevant art to perform the invention. The rights conferred by utility model laws are similar to those granted by patent laws, but are more suited to what may be considered as "incremental inventions".[1][5] Specifically, a utility model is a "right to prevent others, for a limited period of time, from commercially using a protected invention without the authorization of the right holder(s)."[1]

Terms such as "petty patent", "innovation patent", “short-term patents”, "minor patent", and "small patent" are generally considered to fall within the definition of "utility model".[1][6] The German and Austrian utility model is called the "Gebrauchsmuster", which influenced some other countries such as Japan. In Indonesia the utility model is called a "Petty Patent".[7]

Requirements for grant

Most countries having utility model laws require that the invention be new. However, many patent or utility model offices do not conduct substantive examination and merely grant the utility model after checking that utility model applications comply with formalities. This is why for a utility model the granting process is sometimes called simply registration of the utility model.[1] Furthermore, some countries exclude particular subject-matter from utility model protection. For example, in some countries, methods (i.e., processes), chemical substances, plants and animals are barred from utility model protection.[1]

Australia

The law in Australia provides for the grant of a utility model known as an innovation patent. For an innovation patent to be valid the invention claimed must be novel and involve an innovative step. An invention will lack novelty if it has already been disclosed to the public through prior publication or prior use anywhere in the world. Publication within a "grace period" of 12 months prior to the filing date of an innovation patent with the consent of the applicant is not considered to form part of the prior art for the assessment of novelty. The innovative step requirement is supposedly a lesser requirement than the inventive step required for a standard patent under Australian law. An invention will involve an innovative step if there are differences between the invention and the prior art, that make a substantial contribution to the working of the invention.

An innovation patent is granted automatically after a formalities check without substantive examination, however, infringement proceedings cannot be instituted unless and until the innovation patent has been certified, which requires a substantive examination. Examination cannot proceed until the innovation patent has been granted. Innovation patents have a maximum term of eight years subject to payment of annual renewal fees payable from the second anniversary of the date of filing. Innovation patents are available to persons outside Australia, but an Australian address for service must be provided. Innovation patent specifications must be prepared by a registered patent attorney unless the application proceeds as a Convention application or as a divisional application. Innovation patent applications cannot proceed as national phase of an international patent application (see Patent Cooperation Treaty), but can proceed as a divisional application from an international patent application that is open to public inspection.[8]

European Union

In 1997, the European Commission proposed the harmonisation of utility model laws across all EU countries. In 1999, the proposal was updated. No agreement could be reached, and in 2006 the proposal was withdrawn.[9]

Germany

In Germany, a utility model is considered to be new if it does not form part of the state of the art. The state of the art comprises any knowledge made available to the public by means of a written description or by use within Germany before the date relevant for the priority of the application. Description or use within the six months preceding the date relevant for the priority of the application shall not be taken into consideration if it is based on the conception of the applicant or his predecessor in title.[10]

Italy

In Italy, a utility model (in Italian: 'Modello d'utilità') is considered to be new if it does not form part of the state of the art.[11] The state of the art comprises any knowledge made available to the public by means of a written or oral disclosure, anywhere in the World, before the filing date of the application or the priority date (if claimed). The utility model must also involve an inventive step, i.e. machines, devices or items which are claimed in the utility models must be more effective and/or easier to use than the ones according to prior art. Utility models cannot claim processes or methods. At the time of filing the application a filing fee is due which also covers the maintenance for years 1 to 4. No claim fee is provided. The Italian Patent and Trademark Office (UIBM) does not perform substantive examination of the application in order to assess novelty and inventive step of what is claimed; the examination is limited to formal requirements only. Publication occurs at 18 months from the filing date or the oldest priority date, if any; at the time of filing the application the applicant may request advance publication, which normally occurs within 90 days. In any case only bibliographic data are published after 1 month from the filing. Grant generally occurs within 2 years. The validity of an Italian utility model is ascertained by the Judge and his/her technical expert, during litigation. At the end of the fourth year from the filing of the application, a maintenance fee for the years 5 to 10 falls due. Foreign companies/residents must indicate an address of service in Italy, that may correspond to the domicile of a lawyer or, as always occurs, a chartered patent attorney.[12]

Japan

In Japan, a utility model is considered to be new if it has not been made available to the public by means of a written description or by use before the date relevant for the priority of the application (same as for patents). Japanese utility models are not subject to substantive examination, but the owner must request one or more "reports on technical opinion" before instituting infringement proceedings.[13]

Spain

In Spain, the novelty requirement for obtaining a utility model (Template:Lang-es) is "relative", i.e. only public written disclosure of the invention in Spain is prejudicial against the novelty of the invention claimed in the utility model. This is in sharp contrast with Spanish patents for which absolute novelty is required. What constitutes a "disclosure of the invention in Spain" has been the subject of two decisions of the Spanish Supreme Court, in 1996 and 2004.[14]

Availability and names

Utility model applications may be prepared and filed at local patent offices in countries where utility model protection is available.

The table below is a list of countries having utility model protection under various names as at March 2008.

Country Type of protection Maximum term PCT route available[15] Conversion from patent application
Albania[16] utility model 10 years Yes[17] Yes
Angola[18] utility model no set term No No
Argentina[19] utility model 10 years No Yes
ARIPO(†)[20] utility model 8 years Yes[21] Yes
Armenia[22] utility model 10 years Yes[23] Yes
Aruba[24] small patent 6 years No[25] Yes
Australia[26] innovation patent 8 years Not unless by division[27] Yes
Austria[26] utility model 10 years Yes Yes by division
Azerbaijan[28] utility model unknown Yes Yes
Belarus[29] utility model 8 years Yes unknown
Belize[30] utility model 7 years Yes Yes
Bolivia[19] utility model 10 years No unknown
Botswana[31] utility model 7 years Yes unknown
Brazil[32] utility model 15 years Yes probably
Bulgaria[18] utility model 10 years Yes probably
Chile[24] utility model 10 years No unknown
China[33][34] utility model patent 10 years Yes Yes
Colombia[35] utility model 10 years Yes probably by division
Costa Rica[36] utility model 12 years Yes Yes
Czech Republic[37] utility model 10 years Yes Yes by division
Denmark[38] utility model 10 years Yes Yes by division
Ecuador[39] utility model 10 years Yes Yes by division
Estonia utility model 10 years Yes Yes
Ethiopia[40] utility model 10 years No Yes
Finland[41] utility model 10 years Yes Yes
France[42][43][44] utility certificate [N/A] 6 years No Yes
Georgia[45] utility model 8 years Yes Yes
Germany[46] utility model 10 years Yes Yes
Ghana[47] utility model 7 years Yes Yes
Greece[48] utility model 7 years No Yes
Guatemala[49] utility model 10 years No Yes
Honduras[50] utility model 15 years Yes unknown
Hungary[51] utility model 10 years Yes Yes
Indonesia[52] Petty Patent/Simple Patent 10 years Yes Yes
Ireland[53] short term patent 10 years No Yes
Italy[54] utility model 10 years No Yes
Japan[55] utility model 10 – 15 years Yes Yes[56]
Kazakhstan[57] utility model 8 years Yes Yes
Kenya[58] utility model 10 years (From date of registration) Yes Yes
Korea (south)[59] utility patent 10 years Yes Yes
Kuwait[60] utility model 7 years No unknown
Kyrgyzstan[61] utility model unknown Yes unknown
Laos[62] petty patent 7 years No unknown
Lesotho[63] utility model 7 years Yes Yes
Macau[33] utility model unknown No unknown
Malaysia[64] utility innovation 20 years[65] Not directly (+) Yes
Mexico[66] utility model 10 years Yes Yes.[67]
Moldova[68] utility model unknown Yes probably
Mozambique[69] utility model unknown Yes probably
Netherlands[70] short term patent (*) 6 years No unknown
Nicaragua[71] utility model unknown Yes probably
OAPI(‡)[72] utility model 8 years Yes probably not
Panama[73] utility model 10 years No unknown
Peru[74] utility model patent 5 years No Yes
Philippines[75][76] utility model 7 years Yes Yes
Poland[77] utility model 10 years Yes Yes
Portugal[78] utility model 6–10 years Yes Yes
Russia[79] utility model 10 years[80] Yes Yes
Sierra Leone[81] utility model 7 years[82] Yes Yes[83]
Slovakia[84] utility model[85] 10 years Yes Yes
Slovenia[86] short term patent 10 years Yes probably
South Africa[87] functional design 10 years No No
Spain[88] utility model 10 years Yes Yes
Taiwan[89] utility model[89] 10 years[89] No[89] Yes[89]
Tajikistan[90] utility model 9 years Yes probably
Tangier International Zone utility model 10 years No unknown
Thailand[91] petty patent 10 years Yes Yes
Tonga[92] utility model 7 years No No
Trinidad and Tobago[93] utility certificate 10 years Yes unknown
Turkey[94] utility model 10 years Yes Yes
Uganda[95] utility certificate 7 years No Yes
Ukraine[96] utility model 8 years Yes Yes
United Arab Emirates[97] utility model 10 years Yes unknown
Uruguay[98] utility model patent 10 years No Yes
Uzbekistan[99] utility model 8 years Yes probably
Venezuela[100] utility model 10 years No Yes
Vietnam[101] utility model 6 years Yes Yes

(†) The members of ARIPO (Lusaka Agreement) are: Botswana, Gambia, Ghana, Kenya, Lesotho, Liberia, Malawi, Mozambique, Namibia, Rwanda, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
(*) The Dutch short-term patent is no longer granted since June 5, 2008.[102]
(+) A Malaysian Utility Innovation cannot be filed directly from a PCT, but it can be interconverted from a national phase patent application.
(‡) The members of OAPI are: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal and Togo.

References

  1. ^ a b c d e f g h i "Practical Advice - Seeking utility model protection instead of patent protection". PCT Newsletter (04/2018). WIPO. April 2018.
  2. ^ WIPO web site, Where can Utility Models be Acquired?
  3. ^ Heikkilä, Jussi; Lorenz, Annika. "Need for speed? Exploring the relative importance of patents and utility models among German firms". Economics of Innovation and New Technology. doi:10.1080/10438599.2017.1310794.
  4. ^ Bodenhausen, G.H.C. (1969). Guide to the Application of the Paris Convention for the Protection of Industrial Property As Revised at Stockholm in 1967 (PDF). United International Bureaux for the Protection of Intellectual Property (BIRPI). p. 22. ISBN 92-805-0368-5. Retrieved 28 December 2016.
  5. ^ U. Suthersanen, Incremental Inventions in Europe: A Legal and Economic Appraisal of Second Tier Patents, in Journal of Business Law, 2001, 319 ff
  6. ^ Kelsey Martin Mott, The Concept of the Small Patent, in The International Business Executive, 5 February 2007, Volume 5, Issue 3, pp 23 - 24
  7. ^ "WIPO Lex — Indonesia: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  8. ^ "Patents Act 1990 (Aust)". Retrieved 2013-12-21.
  9. ^ "Utility models". Europa. Retrieved 5 July 2018.
  10. ^ Utility Model Law § 3 Abs. 1
  11. ^ Italian Patent Law, Decree n. 30 of February 10, 2005
  12. ^ Articles 147, 148 e-bis and 201 of the Italian patent Law, literally "Codice della Proprietà Industriale", issued as Law Decree no. 30 of February 10, 2005.
  13. ^ "Shimpei Yamamoto, "Utility Models in Japan", The Japan Patent Office, September 3, 2012" (PDF). Retrieved 2013-12-21.
  14. ^ RJ 1996/7239 "Scott c. Sarrió y Sarrió Tisú" and RJ 2004/2740 "PEMSA c. Interflex"
  15. ^ "Types of Protection under the PCT" (PDF). Retrieved 2008-02-12.
  16. ^ "Ladas & Parry Newsletter, November 2004". Archived from the original on 2008-10-12. Retrieved 2008-02-16. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  17. ^ "PCT Applicants Guide - Albania" (PDF). Retrieved 2008-02-16.
  18. ^ a b Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 104, January 2006.
  19. ^ a b Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 113, September 2007.
  20. ^ "ARIPO website". Retrieved 2008-04-27.
  21. ^ "PCT Applicants Guide - ARIPO" (PDF). Retrieved 2013-12-22.
  22. ^ "WIPO Lex — Armenia: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  23. ^ "PCT Applicants Guide - Armenia" (PDF). Retrieved 2013-12-22.
  24. ^ a b Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 111, May 2007.
  25. ^ "Notice from the European Patent Office concerning the requirements to be observed when filing an international application with the EPO as a PCT receiving Office Annex: Applicability of the PCT to EPC territories". European Patent Office. 31 March 2014. Retrieved 2 August 2015.
  26. ^ a b Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 110, March 2007.
  27. ^ "PCT Applicants Guide - Australia" (PDF). Retrieved 2013-12-22.
  28. ^ "Coalition for Intellectual Property Rights - Information on Armenia" (PDF). Retrieved 2008-04-27.
  29. ^ Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 108, November 2006.
  30. ^ "Belize Corporate & IP Services". Archived from the original on 2016-01-12. Retrieved 2008-02-14. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  31. ^ "Ladas & Parry Newsletter, December 1997". Archived from the original on 2008-08-08. Retrieved 2008-02-14. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  32. ^ "Lei nº 9.279, de 14 de maio de 1996".
  33. ^ a b "WIPO Information by Country: China".
  34. ^ Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 101, June 2005.
  35. ^ Manual for the Handling of applications for patents, designs and trade marks throughout the world, Kluwer Law International, Update No. 90, November 2001.
  36. ^ "WIPO Lex — Costa Rica: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  37. ^ "WIPO Lex — Czech Republic: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  38. ^ "WIPO Lex — Denmark: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  39. ^ "WIPO Lex — Ecuador: Intellectual Property Laws and Treaties". WIPO Lex. Retrieved 2011-08-20.
  40. ^ "WIPO Collection of laws for electronic access" (PDF). WIPO Lex. Retrieved 2011-08-20.
  41. ^ "Patentti- ja rekisterihallitus".
  42. ^ "WIPO Information by Country: France".
  43. ^ ""InnovAccess", National Information: France (utility models)".
  44. ^ ""InnovAccess", National Information: France (patents)".
  45. ^ "WIPO Information by Country: Georgia".
  46. ^ "WIPO Information by Country: Germany".
  47. ^ "WIPO Information by Country: Ghana".
  48. ^ "WIPO Information by Country: Greece".
  49. ^ "WIPO Information by Country: Guatemala".
  50. ^ "WIPO Information by Country: Honduras".
  51. ^ "WIPO Information by Country: Hungary".
  52. ^ "WIPO Information by Country: Indonesia".
  53. ^ "WIPO Information by Country: Ireland".
  54. ^ "WIPO Information by Country: Italy".
  55. ^ "WIPO Information by Country: Japan".
  56. ^ Office, Japan Patent. "Utility Model | Japan Patent Office". www.jpo.go.jp. Retrieved 2018-01-15.
  57. ^ "WIPO Information by Country: Kazakhstan".
  58. ^ "WIPO Information by Country: Kenya".
  59. ^ "Overview of the Utility Model System in Korea - KIPO".
  60. ^ "WIPO Information by Country: Kuwait".
  61. ^ "WIPO Information by Country: Kyrgyzstan".
  62. ^ "WIPO Information by Country: Lao People's Democratic Republic".
  63. ^ "WIPO Information by Country: Lesotho".
  64. ^ "WIPO Information by Country: Malaysia".
  65. ^ Intellectual Property Corporation of Malaysia (MyIPO) - Patent Manual and Specification
  66. ^ "WIPO Information by Country: Mexico".
  67. ^ "Art. 49 of the Mexican Law for Industrial Property" (PDF). WIPO Lex. Retrieved 2011-08-20.
  68. ^ "WIPO Information by Country: Moldova".
  69. ^ "WIPO Information by Country: Mozambique".
  70. ^ "WIPO Information by Country: Netherlands".
  71. ^ "WIPO Information by Country: Nicaragua".
  72. ^ "OAPI: Utility Models".
  73. ^ "WIPO Information by Country: Panama".
  74. ^ "WIPO Information by Country: Peru".
  75. ^ "WIPO Information by Country: Philippines".
  76. ^ "Intellectual Property Code of the Philippines" (PDF). Congress of the Philippines. Archived from the original (PDF) on 2008-10-30. Retrieved 2008-10-29. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
  77. ^ "WIPO Information by Country: Poland".
  78. ^ "WIPO Information by Country: Portugal".
  79. ^ "WIPO Information by Country: Russian Federation".
  80. ^ Art. 1363 of Civil Code of the Russian Federation (WIPO Lex): "Validity Term of the Exclusive Rights to an Invention, Utility Model, and Industrial Design"
  81. ^ "WIPO Information by Country: Sierra Leone".
  82. ^ "Patents and Industrial Designs Act, 2012, section 36(3)".
  83. ^ "Patents and Industrial Designs Act, 2012, section 36(5)(d)".
  84. ^ "WIPO Information by Country: Slovakia".
  85. ^ "Slovak Law on Utility Models, No. 478 of 1992" (PDF). Archived from the original (PDF) on May 16, 2008. Retrieved 2008-02-16. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  86. ^ "WIPO Information by Country: Slovenia".
  87. ^ "WIPO Information by Country: South Africa".
  88. ^ "WIPO Information by Country: Spain".
  89. ^ a b c d e "FAQ - Chinese Taipei (TW)". European Patent Office. February 7, 2012. Retrieved April 6, 2013.
  90. ^ "WIPO Information by Country: Tajikistan".
  91. ^ "WIPO Information by Country: Thailand".
  92. ^ "WIPO Information by Country: Tonga".
  93. ^ "WIPO Information by Country: Trinidad and Tobago".
  94. ^ "WIPO Information by Country: Turkey".
  95. ^ "WIPO Information by Country: Uganda".
  96. ^ "WIPO Information by Country: Ukraine".
  97. ^ "WIPO Information by Country: United Arab Emirates".
  98. ^ "WIPO Information by Country: Uruguay".
  99. ^ "WIPO Information by Country: Uzbekistan".
  100. ^ "WIPO Information by Country: Venezuela".
  101. ^ "WIPO Information by Country: Vietnam".
  102. ^ Website NL Octrooicentrum "Vanaf vandaag geen zesjarig nationaal octrooi meer ..."
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