Introduction

Intellectual Property (IP) gives the right to the owner/creator/innovator to commercially exploit their invention and stop others from using it without their permission. It gives them a monopoly of sorts to protect their creation from being exploited by others without their permission. It tries to strike a balance between the interests of innovators and public. The 5 main types of IPs recognized by WIPO are Copyrights, Trademarks, Patents, Industrial Designs and Geographical Indications[1].

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get 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 use, distribution, importing, or selling with their consent. Any act done in contravention of which results in infringement of their rights.

The concept of patent originated to ensure that innovation can be protected and creativity can be fostered. While Patent protection does so, it also curtails those inventions which do not conform to the strict criteria of patentability (novelty, inventive step and non-obviousness, as prescribed by The Agreement on Trade Related Aspects of Intellectual Property Rights)[3]. It is under these circumstances where we believe certain relaxment should be given to the upcoming industries or startups where they can protect their inventions which the law otherwise doesn't protect. It won't only give them a boost but will also protect inventions that are useful.

This article will focus on the said alternative protection model to protect the inventions that have lower level of inventiveness, and if India should change its present Patent regime to include it in its system.

Petty Patents/Utility Model

A utility model is an exclusive right granted for an invention to the creator which entitles 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 referred to as "petty patents" or "innovation patents."[4] They fall short of the definition of inventiveness under TRIPS.

Utility models, as an alternative, are a form of second-tier protection, they are easier to attain than patents because no strict examination is conducted before granting them, making them cheaper and easily attainable[5].

Brief outlines of the common features are as below:[6]

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

It is usually claimed that utility model systems are notably advantageous for MSMEs (Micro, Small & Medium Enterprises). As they provide for an inexpensive and speedy patent regime which can improve the legal surroundings for MSMEs. Another reason why utility models could also be good for MSMEs is that the cost factor may inhibit them from exploiting the legal system as much as they'd desire leaving them vulnerable to the widespread industrial plagiarism.

In US, Amazon recently got a patent for taking a photograph of an object infront of a white background, naming it as 'Studio Arrangement'. Although in most of the countries the Patent would have been rejected on the grounds of non-obviousness and no utility or lack of industrial application which is a requirement under the TRIPs. Even in India, under the current regime, no protection would be granted to either this or similar patents like Amazon's One Click patent or the peanut butter jelly patent.

Micro, Small & Medium Enterprises (MSME) in India

Small & Medium Enterprises are the pillars of the Indian manufacturing sector and have become significant in the stable monetary growth of India[10]. Approximately 70 percent of the employment growth comes from the SMEs in the Asian region and they contribute towards 90% of industrial units in India and 40% of value addition in the manufacturing sector. In India they accounts for 90% of the industrial units in India. As the name suggest these businesses are varied from small organization and trading concerns to large retail chains. According to the estimate, there are over 13 million SMEs in India providing employment to 42 million peoples[11].

Considering that there are n number of such enterprises which have inventive capabilities but don't have technical/legal support to pursue IP rights, or which fall short of the patentability criteria, fail to protect their inventions/creations and suffer great losses. It not only affects their business but also hampers such enterprises from growing, resulting in decrease of competition and affects consumers.

Therefore it is extremely important to safeguard the rights of these enterprises against exploitation.  And utility models take care of this by providing a less stringent procedure for registration and for a lesser duration. Thus once these incremental inventions which are currently not protected under law would be recognised under utility model in India, it will give a great boost to MSMEs and spur innovation as well.

In India, the patent registration process is usually so long that it shortens the actual term of the patent, considering the term of patent is calculated from the date of application and not from the date of granting of patent. Introduction of utility patents would reduce the time taken for registration and will protect innovations.  Although safeguards have to be incorporated to ensure that this process is not misused.

[1] WIPO-What is Intellectual Property, available at http://www.wipo.int/about-ip/en/

[2] WIPO-Patents, available at http://www.wipo.int/patents/en/

[3] TRIPS, available at https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm

[4] WIPO, Protecting Innovations by Utility Models, available at http://www.wipo.int/sme/en/ip_business/utility_models/utility_models.htm

[5] N. Ayse Odman Boztosun, Exploring the Utility of Utility Models for Fostering Innovation, 15 J. INTELLEC. PROP. RIGHTS 429, 429 (2010).

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

[7] See Supra Note 4

[8] See Supra Note 4

[9] Manual for the Handling of Applications for Patents, Designs and Trade Marks throughout the world, Kluwer Law International, Update No. 104

[10] Aayush Sharma, Intellectual Property & Small and Medium Enterprises, available at http://www.mondaq.com/india/x/209194/Trademark/Intellectual+Property+and+Small+and+MediumSized+Enterprises

[11] Neeraj Parnami, Commercialization of Intellectual Property (IP) for Small and Medium Enterprises (SMEs) in India, available at https://mpra.ub.uni-muenchen.de/8232/1/MPRA_paper_8232.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.