The United Nations Special Rapporteur stated in the field of cultural rights:

[t]he conjoined human right to science and culture should be understood as including a right to have access to, use and further develop technologies in a self determined and empowering ways. New scientific knowledge and innovations increase available options, thereby strengthening people’s capacity to envisage a better future for which access to specific technologies may sometimes be pivotal… Access to the benefits of scientific progress not only allows improving one’s socio-economic situation but also gives the opportunity for meaningful participation in the life of local, national or international communities (para. 55).[1]

INTRODUCTION

A utility model, just like a patent, provides the owner and his invention to be prevented from others and their exploitation to the claimed invention without the consent of the owner.

“Utility models” is a generic term which is used to refer to such types of alternative intellectual property rights protection. Utility models come into a comprehensive picture and stand out better than patent. Patents do not provide legal rights to all the innovations, inventions and discoveries which do not come under the required inventive step as the patent system only provide safeguard to those innovations, inventions or discoveries which fulfil specific criteria. In such a case, the utility model comes as a saviour as the alternative means of protection for those innovations, inventions or discoveries which do not fulfil the certain criteria as per the patent system.

The concept of a utility model is still unheard in India as not all countries grant utility models. It is unavailable in many countries, and different countries have different terminology for the term “Utility model.” A utility model protection is unavailable in India and is similar to a patent and provides a monopoly right for an invention. The difference is the requirements for granting a utility model which is usually less stringent and short-term right which is cheaper to obtain.

WIPO defines utility model as[2]:

“A utility model is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention, without his authorisation, for a limited period of time. In its basic definition, which may vary from one country (where such protection is available) to another, a utility model is similar to a patent. In fact, utility models are sometimes referred to as “petty patents” or “innovation patents.”

India is a developing nation with the youngest workforce in the world needs an upper hand in intellectual property rights. Indian Patent Law does not recognise innovations and the increasing inventions and innovations happening in the nation has indicated the need for proper legislation. The need for utility model was not highlighted before, but now, it is very crucial for India to recognise the extent it has grown into.

·       HISTORY

Paris Convention recognised the protection of intellectual property, especially the industrial property. India joined the convention in 1998 and bounded by the provisions of the Paris Convention. In 1891, the German Law first recognised the utility model protection where it demanded minor inventions should also get patented as it is technological advancement and a step towards a better future. This was the first step and a new law which granted protection to even simple devices, and henceforth, the concept of utility model came into the picture. Article 1(ii) of the convention recognises the utility models as an object of the industrial property along with patents.

Another international system which grants patent to the invention to each of the contracting member countries through a simplified procedure by filing an international application. It is known as Patent Cooperation treaty (PCT)[3] and India became a member with effect from December 8, 1998. Article 2 (ii) of PCT entails the reference of patents for invention, utility certificates, utility models, patents, inventor’s certificates, inventor’s certificate of addition utility certificates of addition and certificates of addition. Utility Model application can be filled through national phase utilising the priority date and flexibilities provided therein as permitted by PCT. This makes utility models one of the most recognised alternatives for intellectual property which is recognised by international treaties and convention.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into existence from January 1, 1995. This agreement provides for standards concerning the availability, scope and use of intellectual property in respect of Copyright and Related Rights, Trademarks, Geographical Indications, Industrial Designs, Patents, Layout Designs (Topographies) of Integrated Circuits, Protection of Undisclosed Information and Control of Anti-competitive Practices in Contractual Licences.[4]

·       SALIENT FEATURES

Utility models are sometimes referred to as “petty patents” or “innovation patents.[5]” or “minor patents,” or “small patents.” The salient features are as follows:

®    Utility models provide exclusive protection rights to the product and not the process.

®    The standard of novelty, which is a norm is different in a different jurisdiction in case of utility patents.

®    The certain criteria of inventive step and standards of non-obviousness are much lower in utility models and depend and differ according to the jurisdictional regions.

®    For incremental invention, utility models are appropriate.

®    To grant utility patents, a preliminary examination is required in most of the jurisdiction, and no substantive examination is needed.

®    The terms of protection vary from six-ten years.

®    They are cheaper and easy to obtain.

·       DIFFERENCE BETWEEN UTILITY MODEL AND PATENT

®    Patents do not provide legal rights to all the inventions which do not come under the required inventive step as the patent system only provide safeguard to those inventions which fulfil specific criteria. There is nothing like in utility models.

®    The invention must be novel and inventive over the prior art for a patent to be granted. In utility models, however, an absolute novelty is not required, and also specific criteria are not required and have a lower threshold.

®    A patent provides protection period for up to twenty years, whereas, the term period for utility models is short and is between six-ten years.

®    Utility models are cheaper and easy to obtain as compared to patents.

®    Some countries have a grace period for utility models but not available for patents for an inventor’s own disclosures.

®    Since, a preliminary examination is required in most of the jurisdiction, and no substantive examination is needed in case of utility models. Hence, they are granted much quickly, being the average time around six months.

®    The utility models are published quickly than patent applications which are not published before eighteen months after their priority date.

·       WHEN IS UTILITY MODEL USEFUL?

§  When inventions need minor improvements.

§  Faster registration is required.

§  Inventions with low inventiveness.

§  Incremental inventions.

§  Inventions which are tangible.

§  The patenting cost is more, and the budget cost allocated is less.

·       INDIA & NEED FOR UTILITY MODEL PROTECTION

In India, small scale industry plays a very vital role in the economic growth of the country. This sector has been growing rapidly and definitely faster than the whole of the manufacturing sector, at a rate of 7% to 10% during the past decade.[6]

According to the estimates of 2003-04, at present, there are about 11.359 millions SSI Units(registered and non-registered) in the country accounting for more than 40% of the gross value of industrial production and about 34%of the total export of the country[7]. It also employs about 27.14 million persons, which is second only to Agriculture.[8]

Micro, Small & Medium Enterprises (MSMEs) play an essential role as less capital-intensive producers of consumer goods and providers of employment to labour, thereby addressing the problems of reducing poverty and unemployment. According to Quick Results of 4th All India Census of MSMEs with the reference year of 2006-07 there are about 261.01 lakh enterprises (both registered and unregistered), accounting for more than 44.15 per cent of gross value added (GVA) in the manufacturing sector in the country. It has employed about 594.61 lakh persons as at the end of 31.03.2007, which is the largest source of employment after agriculture.[9]

Since India does not provide utility model protection, inventions like ‘jugaad’ are not getting enough attention and safeguarding. Jugaads are fixing solutions which do not have any long term scalability and are neither sustainable.[10]

·       CONCLUSION

India lacks behind when the innovations are taking over, and the system of the utility model is promising for a developing country like India. It will be beneficial to the start-ups and Micro, Small & Medium Enterprises (MSMEs) and fill the void in the shortcomings of Indian patenting system. The introduction of utility model will facilitate the wave of innovation and creativity, taking India to a higher level.