Innovation Without Patents

Innovation Without Patents

Harnessing the Creative Spirit in a Diverse World

Edited by Uma Suthersanen, Graham Dutfield and Kit Boey Chow

A question the book considers is how far legal protection should extend to inventions that may only just, or indeed not quite, meet the conventional criteria for patentability, in terms of the level of inventiveness. Innovation without Patents offers a thoughtful and empirically rich analysis of the current system in a number of developed and developing countries in the Asia-Pacific. It asks whether such innovations should remain free from patenting, or whether alternative intellectual property regimes should be offered in such cases, and indeed whether the requirements change depending on a country’s level of development. This discussion is capped by a number of proposed policy options.

Chapter 3: Utility Models and Other Alternatives to Patents

Uma Suthersanen and Graham Dutfield

Subjects: innovation and technology, intellectual property, law - academic, intellectual property law


Uma Suthersanen and Graham Dutfield 3.1 What are Utility Models? The term ‘utility model’ (UM) is a generic term which refers to subject matter that hinges precariously between that protectable under patent law and sui generis design law. The term is also somewhat equivocal. It is not an accepted or clearly defined legal concept within the intellectual property paradigm. There is no global consensus on the term’s meaning, due – it has been suggested – to there being ‘fundamentally different concepts from one country to another’. However, the term is bandied about by legislators and jurists to refer to a second tier patent system offering a cheap, no-examination protection regime for technical inventions which would not usually fulfil the strict patentability criteria. This is an important factor: UM protection is accorded, cheaply and quickly, to inventions or innovations, many of which cannot gain protection under the patent regime. If one examines national laws, one finds a plethora of terms used to mean ‘utility model’. Thus, UM protection is referred to in Australia as ‘innovation patent’, in Malaysia as ‘utility innovation’, in France as ‘utility certificate’, and in Belgium as ‘short term patent’. Some systems define utility models as incorporeal subject matter such as technical concepts or inventions or devices; while others anchor their definitions to three-dimensional forms. Yet others offer a utility model type of protection which, in actuality, is tantamount to patent protection without examination and for a shorter duration. Suthersanen, U. (2001), ‘Incremental inventions in Europe: a legal and economic...

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