Utility Patents and Its Position in India – Intellectual Property


India: Utility patents and its position in India

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Utility patents are one of three types of patents present in the United States. A utility patent may be granted to anyone who invents or discovers a new and useful process, machine, article of manufacture or composition of matter or any new or useful improvement.

In other words, a utility patent is an exclusive right granted for an invention, which allows the right holder to prevent others from commercially using the protected invention without his permission for a limited period of time. These are also known as “petty patents” or “innovation patents” or “minor patents” or “petty patents”.

The main features of the utility patent are as follows:

  1. Utility patents confer exclusive rights of protection for the product and not for the process.
  2. Novelty is a standard, but novelty standards are different in different jurisdictions for utility patents.
  3. The standards of non-obviousness and inventive step are much lower and differ according to the jurisdiction.
  4. Utility patents are more suitable for incremental invention.
  5. In most jurisdictions, only a preliminary procedural examination is required for the grant of utility patents. There is no substantive examination for the grant of a utility patent.
  6. The rights granted for utility patents are similar to those granted by patent laws but have a shorter duration.
  7. The duration of protection generally varies from 6 to 15 years; unlike patents with a term of protection of 20 years.
  8. Utility patents are cheaper to maintain and obtain.
  9. The registration term for utility patents is shorter than for patents since in most jurisdictions utility patent applications are not considered prior to registration.

When should you apply for utility patents?

Utility patents can be advised under the following conditions:

  1. For inventions with minor improvements;
  2. If there is a requirement for faster registration;
  3. For invention with low inventiveness;
  4. For inventions that are incremental in nature;
  5. For inventions that are tangible in nature;
  6. When the allocated budget is lower and the cost of patenting is higher.

Countries offering utility patent protection:

Not all countries offer utility patent protection. India is one of them. In India, the provision for granting utility patents does not exist. Some of the countries offering utility patent protection are Brazil, China, Greece, Georgia, Italy, Japan, Korea, Kuwait, Malaysia, Spain, Portugal, Arab Emirates United, Poland, Peru, etc.

Utility patent protection in India:

India does not offer utility patent protection, therefore Indian companies and startups seeking utility patent protection can only apply in the countries mentioned above. India also needs utility patent protection due to its many advantages mentioned above. Apart from these, utility patent protection also benefits small and medium-sized businesses as they lack the funds to perform tests and trials and to pay high patent fees.

An estimate shows that there are over 48 million SMEs in India employing billions of people. For these SMEs, utility patent protection can prove to be a boon, as they fail to protect their inventions and therefore suffer losses in terms of business growth.

Utility patent protection has proven to be an effective guarantee for the protection of MSME inventions. This can further stimulate business growth for MSMEs and would further act as an incentive for MSMEs under the “MAKE IN INDIA” initiative of the Indian government.

Overall, this is the most important type of patent and therefore requires a lot of skill in drafting and prosecuting the patent application before a patent office. You can also learn more about the difference between patent and utility model.

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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Patent Law in India

Anand & Anand

The Patents Act of 1970, along with the Patents Rules of 1972, came into force on April 20, 1972, replacing the Indian Patents and Designs Act of 1911. The Patents Act was largely based on the recommendations of the report of the Ayyangar Committee headed by Judge N. Rajagopala Ayyangar. One of the recommendations was to allow only process patents with respect to inventions relating to drugs, drugs, foods and chemicals.


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