Harnessing the Creative Spirit in a Diverse World
Edited by Uma Suthersanen, Graham Dutfield and Kit Boey Chow
3. Utility models and other alternatives to patents 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)...
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