Ye desh ‘jugaad’ pe chal raha hai (this country is run by ‘jugaad’) is perhaps the most common refrain that people use while condemning the generally inefficiency of governance. But if a recent paper by DIPP (Department of Industrial Policy & Promotion) is any indication then we shall very soon have a law which will not only legalize but reward these jugaad’s through utility model patents. Now before your mind starts boggling and your thoughts go wild, let me clarify the subject and context of the proposed Indian law on utility model patenting, an easier alternative to patents.
The law seeks to introduce a new form of intellectual property, called ‘utility model’ to provide protection to such technologies which do not meet the tough and high standards of patent requirement but nevertheless are worthy of protection for their ingenuity and usefulness. The discussion paper seeks to bring attention to the need of recognizing the minor technical advances by small innovators through a proper legal framework. The need for such legal framework is being increasingly felt in India to promote more and more domestic innovations and to encourage the small and medium enterprises to come out with more innovated products.
What is an utility model?
Utility models, also known as petty patents and utility innovations, is a framework for providing limited protection to those innovations which generally involves incremental innovation but may not meet the standards of the Patents Act and yet are commercially exploitable and socially relevant. The patent system as it prevails in India requires a very high standard of novelty, inventive step and industrial application which has its own justification and reasons but it has often been seen that such standards have often inhibited the protection of small innovations which are extremely useful.
Such inventions though technically less complex than those eligible for a patent, may be exploited by Small and Medium Enterprises, (SMEs) which in the spirit of jugaad, may make minor improvements and adaptations to existing products. These innovations may meet the novelty test, but may not meet the inventive step test and thus be ineligible for protection under the patent law. But such informal innovations should be protected in an economy as informal as ours and this is what ‘utility model’ does. Some of the possible innovations which can be appropriately brought under this protection are as follows:
1)Clay Refrigerator (Mitticool): This clay fridge which does not require electricity and keeps food fresh, works on the principle of evaporation. Water from the upper chambers drips down the sides and evaporates, leaving the chambers cool. This keeps food, vegetables and milk fresh naturally for more than two days
2)An onion seed transplanter. Onion seedlings are usually transplanted manually. This task is time consuming, labour intensive and not standardised. The transplanter is a tractor
3)Gas Stove switch: This device turns off the gas stove after a predetermined number of pressure cooker steam release whistles are sounded . The machine counts and displays the number of whistles a pressure cooker has sounded.
How is it different from Patents?
Utility model is a system largely modeled on patent system but differs from it in some very fundamental ways which are as follows:
1)The requirements for acquiring a utility model are less stringent than for patents. While the requirement of “novelty” is always to be met, that of “inventive step” or “non-obviousness” may be much lower . In practice, protection for utility models is often sought for innovations of a rather incremental character which may not meet the patentability criteria
2)The term of protection for utility models is shorter that for patents and varies from country to country.
3)In most countries where utility model protection is available, patent offices do not examine applications as to substance prior to registration. This means that the registration process is often significantly simpler and faster, taking, on average, six months.
4)Utility models are much cheaper to obtain and to maintain.
5)In some countries, utility model protection can only be obtained for certain fields of technology and only for products but not for processes.
Why should one go for ‘Utility model’ protection?
As it has already been pointed out that ‘utility model’ offers protection to those innovation which although are useful in their nature but cannot meet the demands of patent protection. But there is definitely more to the system than this. The utility model protection is a lot easier to get as the process is faster and less complex.
The registration process is not very demanding and the protection is granted almost immediately with quick publication. The whole process does not usually take more than 6 months to get completed. The duration of protection can vary from 5-10 years within which the holder of the right almost has the same monopolistic rights as a patent holder. Utility model also have priority rights under Paris Convention.
The scope of protection is generally the same as that of patents but various countries restrict it to devices and tools and not granting it for processes and biotechnological patents. The registration process is cheap and simple making it easier for people to get themselves registered and get the protection. Utility model could prove to be advantageous to many enterprises by becoming a bridge to getting a patent rights as well. Since utility models can be got relatively quickly, enterprises can enjoy its protection till the time they get patents for the same when the regime of utility model protection can be withdrawn for that particular innovation.
What to expect in future and what needs to be done?
So, the desirability of a law could easily be seen, taking us to the logical next question, what next? According to United Nations report 55 countries have adopted this new form of intellectual property and recognizing it under a proper legal framework. India unfortunately has lagged behind on this count which already caused a great deal of innovation going untapped and getting lost in the oblivion. But as they say, better late than never as Industry ministry finally seems to woken up to the inherent utility of the concept of utility model. DIPP has floated a discussion paper (http://dipp.nic.in/iprfeedback/Utility_Models_13May2011.pdf) analyzing the law as it prevails in various countries and has sought views on 11 questions ranging from the need of a law recognizing ‘utility model’ to the scope and possible framework.
The utility model patent is yet to be introduced in India
The discussion is the first step in process which can eventually culminate into a new law coming into being provided there are more and more people participate in the discussion so that a need and desirability is felt amongst law makers for recognizing this new form of intellectual property. If the discussion paper gets a good response then it might lead to the formulation of a bill by the concerned ministry which after a proper consultation from other ministries might be introduced in the parliament. This entire process might take anything between an year or so. But for all this get going the discussion paper has to get desired response from the citizenry. People need to take up this cause as I believe that the biggest beneficiary of the new law could be the common people themselves and thus their participation is even more expected.
Utility model patent protection promises a lot more small and medium enterprises and small innovators by providing them with a system which can protect and reward their ingenuity without requiring them to reach the high standards required for getting patents. This may lead to more and more innovation from as the assurance that their work shall be protected could motivate many to innovate and lead to better products and technology.
This post was written by Mr. Ravi Shankar Jha of RMLNLU, Lucknow. Ravi Shankar enjoys studying capital markets and securitization.