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A Therapy for Stifling Innovations
The first part of the article was covered in the September issue of Pharma Bio World where the author started the discussion on adoption of utility model system for countries where patent is the only medium to protect the innovations in their IP legislature. In this concluding part Author discusses trade related aspects, available provisions under various jurisdictions and suggests utility model as an alternative to boost innovations.

Trade-Related Aspects of Intellectual Property Rights (TRIPS) TRIPS, established in1995 does not specifically mentions utility models. However Article 1(1) of TRIPS states “Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement”, thus giving its member countries the freedom to formulate or to reject the provisions of utility model in their IP laws.14 Hence, protection can be given in form of utility models by the member countries to those inventions which perhaps would not meet the patentability requirements. Adopting utility models as a means of protection in their IP regime would not contravene the Article (7) of the TRIPS whose objectives are to promote the innovation and enablement of more extensive use of technology. The clauses of national treatment and most favored nation as defined in Article 1(2) of the TRIPS are not applicable to utility model applications.

Position in Different Jurisdictions
There exists a huge difference in the provisions regarding the utility model protectable subject matter, protection requirements and the rights so obtained after registration of the utility model application. There is also no consistency for enabling an applicant to get utility model protection in addendum to the patent protection for the same invention.
Though the systems diverge greatly in different countries but different jurisdictions provide the common boost to promote the successful translation of an idea into practice.

US: The Unites States, the world’s biggest producer of intellectual property does not have utility model protection in its current IP system.15 One must contemplate on the reasons why The Unites States does not consider bringing this second tier protection mechanism in its legislature. It may be because the US is a net exporter of the intellectual property goods and its most of the innovations does not emerge from SMEs. Being an exporter of the intellectual property goods the United States only worries about protecting its goods outside its own territory and the domestic market is not of much concern.
Moreover the level of competition among the large transnational corporations from which most of the innovative technologies emanates, is sufficient enough to make further incorporation of any legislature preventable or unnecessary. One can argue that the absence of second tier protection availability in the US IP regime puts unnecessary burden on the patent system especially in case of minor inventions. Maintaining competition among the large corporate firms even after giving them monopoly rights for very long time (20 years) is a major concern. It is a question of debate that utility model system being a second tier system may solve the aforesaid problem by providing the monopoly rights for a shorter duration, simultaneously protecting the invention in the similar way as that of patents. The Unites States is still considering the introduction of second tier protection in its IP regime with a serious thought on maintaining its industrial policy of free competition within the product and innovation markets.

Europe: The use of utility models in countries of Europe has demonstrated its contribution in creating and fostering domestic petty technological innovations. There is currently no single legal framework for utility model applications that can encircle all the member states of the European Union. Utility model protection available in countries of Europe like France, Belgium, Portugal, Italy, Spain, Germany, Denmark, Ireland, Greece, Austria, Finland and the Netherlands differ quite widely. Utility model system has not been introduced till today in United Kingdom, Luxembourg and Sweden. At present, patent and design law are the only mode of protection in Luxembourg and Sweden with no second tier protection availability for petty inventions. The United Kingdom has a second tier system recognised as unregistered design right system. Some countries in Europe like Italy, Spain, Denmark, Finland, Greece and Portugal have traditional utility model system ie, the protectable invention must be embodied in a three dimensional form.16, 17, 18, 19, 20 and 21 Austrian law works under the similar principle as that of German Law being different in terms of protracting the protectable subject matter to algorithm and process of a computer programme whilst excluding the microorganisms and similar biotechnological inventions from its utility model domain.22 French and Belgian second tier protection is not really a utility model system but may be regarded as pseudo utility model system.
This system offers protection to the inventions similar to the patent law in addendum to a quick registration of the invention. The Italian IP legislature uses the term 'patent' but it is somewhat more similar to traditional utility model regime. All of these systems aspire to provide an additional mode of protection for technical inventions which otherwise are very difficult to protect under patent system. All member states of the European Union accept the utility model application without substantial examination making the registration an easy, quick and inexpensive procedure. Germany, Spain and Italy are the countries where the filing of utility model application is very high amongst the member countries. Filing in these countries exceeds the average of less than 1000 application per annum. Reason for lesser filing in other member countries can be ascribed to the high level of inventive step requirement.23

1) Germany: In Germany the utility model is known as 'Gebrauchsmuster'. It was introduced in 1891, because of unsuitability of strict patent law involving 'technischer Fortschritt' which meant 'technical step forward in the art' a standard which was too high for minor inventions.24 As per the 2005 amendments of the German utility model law protectable subject matter of utility model includes any technical invention provided it is new, involves an inventive step and has industrial applicability. Threshold of protection w.r.t. novelty, non-obviousness is low as compared to patents. Registration of the utility model is quick and easy because of absence of pre-grant examination.
As the registration process is simple and is not a stumbling block for the innovators so they intend to file the utility model simultaneously with the patent application. In Germany, the number of utility models granted exceeds the number of patents granted. The method claims, process claims and biotechnological inventions are barred to be included according to German Utility Model Act. 'Use claims' are not excluded as there is a subtle difference between the use claims and method claims. For example, the claim directed towards the use of an active substance in form a formulation for a specific medical use is permitted. Maximum term of protection for utility model application in Germany is ten years.25

2) Spain: As per the Spanish patent and utility model law process patents are barred from inclusion under the utility model registration. In Spain the novelty requirement of utility model is different as that of patents. Unlike patents public written document accessibility to the public may not constitute the breach of novelty requirement in case of utility model applications. Divulgation of the written document is the only criterion for violation of novelty of the invention which necessitates the dissemination of the document among the public rather than its mere existence at a public place. Utility model application can be opposed by any person within two months of the publication of the application. An appeal against the decision involving grant or termination of the utility model application can be raised in the Patent Office’s Board of Appeals. The appeal against the decision of Patent Office’s Board of Appeals can be further moved up before the Madrid Appeal Court within two months of the decision. Term of protection of utility model application in Spain is ten years. Rights granted and compulsory license provisions are same as that of patents.

3) Italy: Utility model application requirements are similar in Italy as that of other countries vis-à-vis lower threshold of the novelty and inventive step. Multiple priorities are allowed for a utility model application. Production processes, chemical inventions and electric/electronic circuits are excluded from the protectable subject matter of the utility model application. Any natural person can apply for the utility model application through a qualified patent attorney. Rights granted can exclude a person from using the invention and the right holder can bring the legal proceedings against the infringer after 18 months from the date of filing or priority of the application. Term of protection of the utility model application is 10 years and opposition provisions are not there in the Italian utility model regime. Compulsory licensing and transformation of utility model application into the patent application (also vice versa) is possible for utility model applications.

Should India being a developing country think to adopt the utility model provisions in its IP legislature? Often, the minor incremental and useful innovations which may prove technically advance over the prior state of art have been neglected in Indian domestic market. Such inventions involving minor but substantial improvements and exhibiting less complex technological aspects than patented inventions under the spirit of jugaad (small adjustments) may encourage SMEs in Indian domestic market. These minor innovations are difficult to get protected by the present Indian patent system because they are unable to meet the inventive step requirement under section 3(d) of Indian Patent Act 1970. Clay refrigerator which does not require electricity, pole climber, gas stove switch which turns off the gas stove after predetermined time are some examples of such small adjustments which can come under utility model protection.26 Similarly in pharmaceuticals, salt form of the active ingredient which has been already protected by a patent, can not be protected unless it shows remarkable improvement. This salt form though novel in itself can not patented because of inability to surpass the higher cliff of novelty and inventive step. But with the advent of Utility model system into IP legislature of India, this salt form can be protected for a shorter duration of time. In a resource restrained economy like India which can use local resources, petty inventions should be encouraged by providing them protection through a legal framework involving less stringent patentability requirements. A deliberately designed second tier protection mechanism can solve the desired purpose. There may be several reasons for which India should consider the utility model protection as an alternative protection mechanism for the innovations. Some of these reasons are mentioned below.27
i. It will encourage those innovations, protection of which is not possible under patent regime.
ii . It will encourage the economic development of India via promoting the small scale inventions
iii. It will encourage the SMEs to flourish iii. It will protect the minor inventions via quick registration at low expense.
iv. It will promote the faster disclosure of innovative ideas for further improvement.
v. New inventions can be disinterred from the small technical advanced innovations.
As per the recently published discussion paper by DCGI table 4 shows a comparison between the numbers of patents granted to Indian and foreigners in India. A light has been thrown on the trend of the percentage of Indian patents which are in force since 1999 in India. As seen from the above table that the number of patents granted to Indians in India is only 17 per cent of the total patents granted in India. Data from the above table also indicates the urgent need to promote domestic innovations via a strong and simple legal skeleton which in author’s point of view is possible only by co-existence of utility model system along with the patents. Micro, Small and Medium Enterprises (MSMEs) play an important role in economic and social development of India contributing 8 per cent of the country’s GDP. There should be a medium to demonstrate a path from genesis of an idea to its actual implementation at the social level. Utility model system should be introduced in India with apt legal legislature to complement such initiatives.

Utility Model - An Alternative to Patents
Can a utility model protection mechanism transform the applicant's decision to opt it as an alternative to the patent system? Even a long eternal debate can not answer the aforesaid question but shortcomings of the current patent system in terms of protectable subject matter, non-obviousness requirement and term of protection should be well understood before coming to any decision.
Protectable subject matter of the utility models should points toward technical advances rather than inventions. Current patent system involves a cliff of 'invention barrier' which is very difficult to be overcome by the minor incremental innovations. This hurdle can be surpassed easily by introducing the utility model protection which emphasises the concept of 'technical advances' for minor inventions. Utility model provides the petty but practical solutions towards innovations and can change the scenario from hard to achieve inventions towards the easily approachable concept of 'technical advancement'. As this technical advancement of the inventions is primarily based upon their utility for the society they are recognised as utility model in general. Patentability requirement of non-obviousness was introduced into the patent system to avoid the inventions which are not technically advance or are obvious to a person skilled in the art.
However, obvious inventions should be eliminated by the market forces only and the non-obviousness should not be a stringent requirement condition for protection in case of a utility model. Waiving the non-obviousness requirement may help the potential innovators to focus on small advances which are easily achieved in their field. Term of patent protection ie, 20 years is very long to provide monopoly to the right holder especially if patent involves a petty innovation.
Term of protection should be varied in case of utility models for different sectors depending on the time required by the innovation to reach the people. For example, In case of pharmaceutical and chemical industry it should be longer as they require extended clinical testing. On the other hand, a long term of protection for information technology sector would prove irrelevant. Negativity of the utility model lies in alluring the researchers to offer similar kind of protection as that of patents whilst restricting them to small incremental innovations only. Co-existence of utility model system along with the patents may result in alleviating the excess burden of conducting examination by the patent authorities simultaneously saving the time and money of the applicant.
Providing the rights of intellectual property only in form of patents for the major inventions which are practically rare to achieve paves a way to stifle the small incremental inventions which actually have the potential in promoting the economical development of SMEs especially in developing countries. This can be compared to a situation in developing countries where only the rich people have got the opportunity to get richer and poor people are drowning more deeply into the abyss of abject poverty. Only via the obligation of certain compulsions and legislative restrictions, utility model protection mechanism can co-exist with the patent regime and further the prevention of the abuse of their co-existence is a menace that should be suppressed in an apt manner.
To put into practice a balanced protection means which incorporates both the patent and utility model systems carries a great risk into it but the risk involved are not substantial enough when we look into their beneficial aspects. Utility models are easy to acquire but provides a limited protection to the innovation. Though the utility model is a lesser form of protection in the IP regime, it may play a crucial role as a protective mechanism that can reduce the shortcomings of the existing patent system. Despite the presence of fundamental differences that exists in the perception of utility models worldwide, their co-existence with the patents can promote the incremental innovations worldwide.
Utility model is particular advantageous for Small and Medium Sized Enterprises (SMEs), henceforth, incorporation of utility model system covering the sheath of legal framework will prove conducive in sustaining the growth of developing countries. In nutshell, utility model after surmounting the negativities of the patent system can substitute the patent application in order to foster incremental inventions.
Utility model can be proved successful by implementing some strict regulations like (i) Protecting only the actual practical solution of the problem involved in the innovation (ii) Resgistration process should be simple, quick and hurdle free (iii) Rights associated with the utility model protection should be exploitable practically with the satisfaction at domestic level. (iv) Rights granted under the utility model should be equivalent to as that of patent. (v) Term of protection of utility model should be six-ten years ie, much shorter than patent term. (vi) Conversion of utility model application to a patent application should not be allowed while conversion of a patent application to a utility model application should be allowed. (vii) Application fee for utility model should be kept low whilst increasing the maintenance fee so that innovator can renounce the innovations which are trivial. (viii) Avoiding implementation of pre-grant opposition so as to expedite the grant of utility models. (ix) Threshold of the conditions like novelty, non-obviousness and industrial applicability should be lower than patent system. (x) The term of protection should vary for different sectors to the maximum of ten years. (xi) Claims wider than the actual technical solution should not be allowed. (xii) Provisions related to compulsory license and experimental use exception should be applicable to utility models in a similar fashion as they are applicable to patents. (xii) An applicant should be able to sue the infringer and the damages so obtained should not be lesser than the patent protection.