Need for Utility Patents in India – Intellectual Property


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Intellectual property (IP) gives the owner / creator / innovator the right to commercially exploit his invention and prevent others from using it without their permission. This gives them a sort of monopoly to protect their creation from exploitation by others without their permission. He tries to find a balance between the interests of innovators and the public. The 5 main types of intellectual property recognized by WIPO are copyright, trademarks, patents, industrial designs and geographical indications.[1].

A patent is an exclusive right granted for an invention, which is a product or process that generally provides a new way of doing something, or offers a new technical solution to a problem. To obtain a patent, technical information about the invention must be disclosed to the public in a patent application.[2].

Once a patent is granted, the owner decides who can use the invention for commercial purposes, distribution, importation or sale with their consent. Any act done in contravention that results in an infringement of their rights.

The concept of patent was born to ensure that innovation can be protected and creativity can be encouraged. Although patent protection does, it also restricts inventions that do not meet the strict criteria for patentability (novelty, inventive step and non-obviousness, as prescribed by the Agreement on Aspects of Intellectual Property Rights Affecting Trade)[3]. It is under these circumstances that we believe that some relaxation should be given to upcoming industries or startups where they can protect their inventions that the law does not protect otherwise. This will not only give them a boost, but also protect useful inventions.

This article will focus on said alternative protection model to protect inventions that have a lower level of inventiveness, and whether India were to change its current patent regime to include it in its system.

Small patents / utility model

A utility model is an exclusive right granted to an invention to the creator that allows him to prevent others from commercially exploiting the protected invention, without his authorization, for a limited period of time. A utility model is similar to a patent. They are sometimes called “petty patents” or “innovation patents”.[4] They do not meet the definition of inventiveness under the TRIPS Agreement.

Utility models, as an alternative, are a second-level form of protection, they are easier to obtain than patents because no strict examination is carried out before granting them, which makes them less expensive and easily accessible[5].

Brief overviews of common features are as follows:[6]

  1. Utility patents most often confer exclusive rights to protect the product and not the process.
  2. Novelty is a criterion in all utility patent systems, although standards of novelty may vary by jurisdiction.
  3. The standard of non-obviousness or inventive step is generally much lower than that of patents. This too varies from jurisdiction to jurisdiction. In most legal systems, the inventive step requirement is either removed or diluted[7].
  4. In most jurisdictions, there is no substantive examination prior to the grant of a utility patent, only a preliminary procedural examination is required.[8]
  5. The term of protection generally varies from six to fifteen years, unlike patents which, in large jurisdictions, have a term of twenty years.[9].

It is generally claimed that utility model systems are particularly advantageous for Micro, Small & Medium Enterprises (MSMEs). Because they provide for an inexpensive and fast patent regime that can improve the legal environment for MSMEs. Another reason that utility models might also be good for MSMEs is that the cost factor may prevent them from exploiting the legal system as much as they would like, leaving them vulnerable to widespread industrial plagiarism.

In the United States, Amazon recently obtained a patent to take a photo of an object in front of a white background, naming it “Studio Arrangement”. Although in most countries the patent would have been rejected for non-obviousness and lack of utility or lack of industrial application, which is a requirement under TRIPS. Even in India, under the current regime, no protection would be granted to this patent or similar patents like Amazon’s One Click patent or the peanut butter jelly patent.

Micro, Small and Medium Enterprises (MSMEs) in India

Small and medium-sized enterprises are the backbone of India’s manufacturing sector and have become important in India’s stable monetary growth[10]. About 70 percent of employment growth comes from SMEs in the Asian region and they contribute 90% of industrial units in India and 40% of value added in manufacturing. In India, they represent 90% of industrial units in India. As the name suggests, these businesses are diverse, ranging from small organizations and commercial enterprises to large retail chains. According to the estimate, there are over 13 million SMEs in India employing 42 million people[11].

Considering that there are a number of these companies which have inventive capacities but do not have technical / legal support to pursue intellectual property rights, or which do not meet the criteria for patentability, fail to protect their inventions / creations and suffer heavy losses. This not only affects their business, but also prevents these businesses from growing, which leads to less competition and affects consumers.

It is therefore extremely important to protect the rights of these companies against exploitation. And utility models take care of it by offering a less stringent registration process for less time. So, once these incremental inventions which are currently not protected by law are recognized under the utility model in India, it will give a big boost to MSMEs and also stimulate innovation.

In India, the patent registration process is usually so long that it shortens the actual term of the patent, since the term of the patent is calculated from the date of application and not from the date of grant. of the patent. The introduction of utility patents would reduce the time required for registration and protect innovations. Although safeguards should be incorporated to ensure that this process is not misused.

[5] N. Ayse Odman Boztosun, Exploring the usefulness of utility models to foster innovation, 15 J. INTELLEC. TO SUPPORT. RIGHTS 429, 429 (2010).

[6] Uma Suthersanen, Utility Models and Innovation in Developing Countries, UNCTAD-ICTSD Project on IPRs and Sustainable Development

[9] Handbook for handling worldwide patent, design and trademark applications, Kluwer Law International, update no.104

[11] Neeraj Parnami, Commercialization of Intellectual Property (IP) for Small and Medium Enterprises (SMEs) in India, available at

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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