UK: Utility Models

Some of the most common questions, which arise once an invention has been devised, are “How can I protect my invention?’’ and “Should I file a patent application?’’. Whilst a patent does provide an effective monopoly right to exclude third parties from making, using, selling and importing the invention, it is not the only way to protect an invention.

Utility models are another type of monopoly right available in many countries, and provide a low cost option for securing an enforceable right quickly.

What is a utility model?

A utility model is an intellectual property right, which similar to patents, provides a monopoly right for an invention.

The costs associated with obtaining a utility model are generally much lower than required to secure a patent. The time to grant is shorter, and the requirements for securing a utility model are less stringent compared with patents. Typically, the term of the protection afforded by a utility model is also less than term afforded by a patent.

Utility models are only available in some countries. Austria, China, France*, Germany, Japan, Russia, Spain and Taiwan are examples of the more prominent countries where utility model protection is available. For a complete list of countries where utility models can be acquired, see here. Notable absentees from this list are the United Kingdom and the United States.

*In France, Certificate of Utilities are available, which are effectively equivalent to utility models.

What are the grant requirements?

In most countries in order to obtain a utility model, the requirement of the invention being ‘new’ needs to be met. In most cases, a utility model does not undergo substantive examination, leading to a quick grant.

The novelty requirement can differ, in some countries being ‘absolute’ and in others ‘local’. Absolute novelty refers to worldwide novelty and local novelty refers to the novelty condition being limited to prior publications and prior use in the subject country (i.e. Azerbaijan).

Are utility model applications examined?

No, utility models are unexamined, and grant as of right, provided that they meet all of the national formality requirements. Validity of a utility model is only assessed during subsequent enforcement proceedings.

What is the term of a utility model?

The term of a utility model is much shorter than that of a patent, typically in the region of 6-10 years, depending on the country in question and provided that periodic maintenance fees are paid. The following table summarizes the maximum term limits (from filing the application) for utility models in applicable European* countries:

Country

Maximum Term

Albania

10 years

Armenia

10 years

Austria

10 years

Azerbaijan

10 years

Belarus

5 years

Bulgaria

10 years from filing (4 years from filing and two possible 3-year renewals)

Czech Republic

4 years from filing date; twice extendible with 3-year periods (maximum duration of 10 years)

Denmark

3 years from the filing date, extendible with a 3-year term and with a further 4-year term

Estonia

4 years from filing, extendible by 4 years and a further 2-year period, to a maximum of 10 years

Finland

4 years from the date of filing, renewable for a 4-year period and a 2-year period (maximum duration 10 years)

France

6 years

Georgia

10 years

Germany

3 years from the day following the application date; period may be extended by 3 years, and further by two periods of 2 years each, for a maximum duration of 10 years.

Greece

7 years

Italy

(An Italian Utility Model also receives protection in San Marino and can be enforced in Vatican City)

5 years from the filing date, extendible for a 5-year period for a maximum of 10 years.

Kazakhstan

5 years from the filing date, with possibility of 3 years extension

Moldova (Short-Term Patent)

6 years from the application date, extendible by 4 years to a total of 10 years from the application date

Poland

3 years from the date of filing of the application, renewable for a 2-year period, a 3-year period and a 2-year period, for a total of 10 years

Portugal

6 years from the date of filing; renewable for two periods of 2 years

Romania

6 years from the filing date, extendable by a further two 2 year periods, for a total of 10 years from the filing date

Russia

10 years

Slovakia

4 years from the date of filing the application, extendible twice for further 3-year periods.

Spain

10 years

Turkey

10 years

Ukraine

10 years

*We appreciate that there is some debate as to whether Azerbaijan, Armenia, Georgia, Russia, Ukraine and Kazakhstan are located in geographic Europe. To avoid any controversy on the issue, we have adopted UEFA’s definition.

Can I file a utility model for all types of invention?

Most European countries restrict the type of inventions that may be protected via utility models. For example, in Germany processes including methods of manufacture, and biotechnological inventions including pharmaceutical/chemical compositions are not protectable via a utility model. Different countries apply different subject matter restrictions.

In addition to relating to qualifying subject matter, an invention must also be novel and capable of industrial application to qualify for protection. Interestingly, whilst Germany applies an absolute novelty requirement, prior use and/or an oral description of the invention occurring outside of Germany is excluded from the prior art. Certain countries such as France, also apply an inventive step requirement, in which the invention must be shown to be non-obvious.

The following table summarizes the registration requirements in different countries:

Country

Registrability requirements

Excluded Subject Matter

Albania

Absolute novelty, susceptible to industrial application and the result of a creative effort

1. Process inventions, animal and plant varieties and the same exceptions defined for patents apply

Armenia

Absolute novelty and industrially applicable solution that concerns production (equipment, material) or a method

1. A technical solution based on/for biological substances.

2. A technical solution based on/for chemical or pharmaceutical substances or means, as well as methods of human and animal treatment.

3. A technical solution or a method, the exploitation of which contradicts the public interests, morality and philanthropy principles.

 

Austria

Absolute novelty, inventive step (the same as for patents) and industrial applicability

1. Computer programs, plant varieties and biological material and methods for breeding are not registrable, animal varieties and methods for breeding as well as methods for the surgical or therapeutic treatment of the human body and diagnostic methods to be practiced on the human body are not registrable.

Azerbaijan

Local novelty and industrially applicable

1. Solutions related to external appearance of a product and directed at satisfaction of aesthetic requirements; integrated circuits.

Belarus

Absolute novelty and industrially applicable

1. Solutions concerning solely the outward appearance of manufactured articles and intended to satisfy aesthetic requirements; contrary to public interest, humanitarian principles or morality.

Bulgaria

Absolute novelty, involves an inventive step, and susceptible to industrial application

1. Discoveries, scientific theories and mathematical methods.

2. Artistic work results.

3. Schemes, rules and methods for performing mental acts, playing games or doing business and computer programs.

4. Presentation of information.

5. Inventions: the publication or exploitation of which would be contrary to public order or morality.

6. Substances obtained by internal nuclear transformations and destined for military purposes.

7. Plant varieties and animal varieties, and essentially biological processes for the production of plants or animals.

8. Processes and methods.

 

Czech Republic

Absolute novelty, exceeds the scope of mere skill in the art and is susceptible of industrial application

1. Discoveries, scientific theories and mathematical methods.

2. The mere external appearance of products.

3. Schemes, rules and methods for performing mental acts.

4. Computer programs.

5. The mere presentation of information.

6. Technical solutions being contrary to public interests, in particular to the principles of humanity or public morality.

7. Plant varieties, animal varieties and biological reproduction materials.

8. Production processes and working activities.

Denmark

Absolute novelty and susceptible to industrial application

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations.

3. Schemes, rules and methods for performing mental acts, playing games or doing business.

4. Computer programs as such.

5. Presentations of information.

6. War material.

7. Processes and methods.

 

Estonia

Absolute novelty, involves an inventive step, and susceptible to industrial application

1. Industrial designs.

2. Layout-designs of integrated circuits.

3. Discoveries, scientific theories, and mathematical methods.

4. Schemes, rules, and methods for performing mental acts or doing business.

5. Design documentation for and plans of constructions, buildings or areas.

6. Symbols.

7. Algorithms for computers and computer programs.

8. Presentations of information.

9. Human bodies or parts thereof.

10. Plant or animal varieties.

11. Inventions which are contrary to public order and morality.

12. Methods of treatment and diagnostic methods practiced on the human or animal body.

13. Biotechnological inventions.

 

Finland

Absolute novelty, must clearly differ from prior art, and be industrially applicable

1. Discoveries, scientific theories, and mathematical methods; aesthetic creations; schemes, rules, and methods for performing mental acts, playing games or doing business, and programs for computers; and presentations of information.

2. Inventions lacking the required novelty.

3. Inventions not clearly differing from the prior art (note that the level of inventiveness may be lower than that required under patent law).

4. Inventions the exploitation of which would be contrary to morality or public order.

5. Plant varieties and animal breeds.

6. Processes.

 

France

Absolute novelty, inventive step and industrial applicability

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations. 

3. Schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.

4. Presentations of information. 

5. Surgical, therapeutic or diagnostic methods of treatment of humans or animals.

6. Plant or animal varieties, as well as essentially biological processes for plant or animal variety selection.

 

Georgia

Absolute novelty, inventive step (less level than for invention) and industrial applicability

1. Discovery, scientific theory or mathematical method.

2. Artistic creation.

3. Algorithm, computer program.

4. Educational or teaching method and system, language grammar system, methods for performance of mental acts, rules for games or gambling.

5. Methods of business and organizational management.

6. Plans and schemes of structures, buildings or territories.

7. Presentation of information.

8. Utility models against public order.

9. Surgical, therapeutic or diagnostic methods of treatment of humans or animals.

10. Plant or animal varieties, as well as essentially biological processes for plant or animal variety selection. This rule does not apply to microbiological processes and products obtained through such processes.

 

Germany

Absolute novelty, inventive step and susceptible of industrial application.

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations.

3. Schemes, rules and methods for performing mental acts, playing games or doing business, and computer programs.

4. The presentation of information, the publication or exploitation of which would be contrary to public order or morality (it being understood that publication or exploitation shall not be deemed to be so contrary only because it is prohibited by law or regulation; furthermore, protection for subject-matter constituting a State secret is not excluded).

5. Plant or animal varieties.

6. Methods and processes.

7. Biotechnological inventions.

 

Greece

Absolute novelty and industrially applicable

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations. 

3. Schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.

4. Presentations of information. 

5. Surgical, therapeutic or diagnostic methods of treatment of humans or animals.

6. Plant or animal varieties, as well as essentially biological processes for plant or animal variety selection.

 

Italy

 

Absolute novelty, involves an inventive activity, and susceptible of industrial application

1. Pharmaceuticals, chemical products, methods or processes, computer-related inventions

 

Kazakhstan

Absolute novelty and industrially applicable

1. Scientific discoveries and theories, mathematical methods.

2. Business methods.

3. Symbols, schedules and rules, methods of mental operations.

4. Algorithms and computer software.

5. Projects and plans of layouts of constructions.

6. Solutions regarding appearance of an article.

 

Moldova (Short-Term Patent)

Absolute novelty, involves an inventive activity and is susceptible of industrial application. The requirement of inventive activity is lower than for patents.

1. Discoveries, scientific theories and mathematical methods and ideas.

2. Aesthetic creations.

3. Schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers.

4. Presentations of information.

5. Biological material.

6. Chemical or pharmaceutical substances and methods of their preparation.

7. The exceptions as mentioned in Rule 39 PCT apply.

 

Poland

Absolute novelty, useful and has technical character.

1. A substance or a method of manufacture.

Portugal

Absolute novelty, involves an inventive step, and susceptible of industrial application.

1. Creations whose commercial exploitation is against the law or contrary to public policy, public health or morality and their exploitation may not be considered as such due to the simple fact that it is forbidden by law or regulations; creations involving biological material; creations involving chemical or pharmaceutical substances or processes.

 

Romania

Absolute novelty,  must exceed the framework of mere professional skill and be susceptible of industrial application.

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations.

3. Plans, principles and methods regarding intellectual activities, games or in the field of economic activities, as well as computer programs.

4. Presentations of information.

5. Inventions whose commercial exploitation is contrary to public order or to accepted principles of morality, including the ones harmful to people's, animals' or plants' health or life, or the ones that could potentially gravely damage the environment, under the condition that this exclusion does not depend solely on the fact that exploitation is forbidden by a provision of the law.

6. Plant varieties and animal breeds.

7. Inventions of biologic materials, products consisting of pharmaceutical or chemical substances.

8. Inventions of processes or methods.

 

 

Russia

Absolute novelty and industrially applicable

1. Products other than devices, processes, substances, microorganism strains and cultures of plant or animal cells and any kind of use of any subject-matter cannot be protected by a utility model.

2. Furthermore, what cannot be protected by a patent, cannot be protected by a utility model either.

 

Slovakia

Absolute novelty, has to be a result of inventive activity, and has to be susceptible of industrial application.

1. Discoveries, scientific theories and mathematical methods.

2. Aesthetic creations.

3. Schemes, rules and methods for performing mental acts, playing games or business methods.

4. Computer programs.

5. Presentation of information.

6. Technical solutions which working being contrary to public interests, in particular to the principles of humanity or public morality; Plant varieties and animal races.

7. Essentially biological processes for production of plants or animals.

8. Methods of surgical or therapeutic treatment of the human or animal body and diagnostic methods and methods of illness prevention practiced on the human or animal body.

9. Technical solution concerning products consisting of biological material or including biological material or process for production or use biological material.

10. Methods for production of chemical substances.

11. Methods for production of pharmaceutical substances.

12. Medical use of substances and compositions of substances.

 

Spain

Absolute novelty, involves an inventive step, and is susceptible of industrial application.

1. Discoveries, scientific theories and mathematical methods.

2. Literary or artistic works or any other aesthetic creations, and scientific works.

3. Schemes, rules and methods for performing mental acts, playing games or doing business.

4. Computer programs.

5. The presentation of information.

6. Methods for the treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body; however, products, in particular substances or compositions, to be used in such methods may be patented, and inventions relating to apparatus or instruments for use in such methods may be patented.

7. Those inventions whose commercial working contravenes public order or decency, without the working of an invention being considered such through the mere fact of being prohibited by a legal provision or regulation. In particular, the following subject matter is not protectable:

  • processes for cloning human beings;
  • procedures for modification of germ line genetic identity of human beings;
  • the uses of human embryos for industrial or commercial purposes;
  • processes for modifying the genetic identity of animals causing suffering to them with no substantial medical or veterinary benefit to man or animal, and the animals resulting from such processes.

8. Plant varieties and animal races.

9. Essentially biological processes for obtaining plants or animals.

10. The human body, in its different stages of constitution and development, as well as the simple discovery of one of its elements.

11. The sequence or partial sequence of a gene without indication of its biological function.

 

Turkey

Absolute novelty and industrial application.

1. Unpatentable matters, processes and the products obtained by such processes, and chemical products

 

Ukraine

Absolute novelty and industrial application

1. Plant varieties and animal breeds; processes of the reproduction of plants and animals that are biological; discoveries, scientific theories and mathematical methods; methods of intellectual, economical, and commercial activity; rules for exercise, games, contests, auctions; computer programs; methods of presentation of information.

Can I file a 'European utility model'?

There is currently no centralised system for obtaining a European utility model affording protection throughout Europe. Similarly, there is also no centralised European filing system for applying for a utility model for subsequent validation in different European member states, as is currently the case for European patents.

In order to acquire utility model protection in different countries, it is necessary to file separate national utility model applications in each desired country where available.

Can I claim priority from a utility model?

Utility models can be used to form the basis for a valid priority claim for either a subsequently filed utility model or patent application. For example, a European patent application may claim priority to one or more earlier filed utility models directed to shared subject matter. This is an effective strategy that ensures some form of enforceable protection is in place, as provided by the utility model, during the pendency of the subsequently filed patent application. Note that if the earlier filed utility model and the subsequently filed patent application are directed to the same invention, then prior to grant of the patent application, the earlier filed utility model would need to be abandoned to avoid duplicated protection of the same invention.

Publication, grant, and prior art issues

A utility model will publish on grant, which is typically within 6 months of its filing date, which means it could be citable prior art in respect of a subsequently filed patent application. To mitigate for this, it is important that the utility model and associated patent application share the exact same subject matter, and that priority is claimed from the earlier filed utility model. 

What are the advantages and disadvantages of a utility model?

Advantages

  • The lack of substantive examination makes the registration process simple and faster when compared with the patent application process.
  • It is cheaper to obtain and maintain a utility model compared to a patent
  • The quick grant leads to a granted monopoly IP right being obtained much more quickly. This is crucial in terms of having an enforceable right to seek relief against infringing acts by third parties.
  • In most cases, the relief and remedies offered for patent infringement cases are also offered to utility model infringement cases.

Disadvantages

  • The absence of substantive examination leads to less legal security in terms of the validity of the registered utility model. This can lead to 1. the utility model being challenged and revoked; and 2. third parties being more cautious in terms of entering into licensing agreements and/or providing funding.
  • Whilst there may be no substantive examination during the application phase, a utility model is an enforceable IP right. Consequently, validity of the utility model is always examined as part of an enforcement action. Only valid rights can be enforced.
  • The short term period may be undesirable for inventions which are expected to have long commercial lives.

Can I convert a patent application into a utility model?

Yes. Many countries allow for a patent application to be converted to a utility model application. A notable exception to this is Germany, which does not allow conversion of a patent application to a utility model (‘Gebrauchsmuster’). However, German law does permit a Gebrauchsmuster to be filed claiming the filing date of a pending national or European patent application.

Some countries apply a time limit for conversion. In some countries, a refused patent application may be converted into a utility model within a certain time period.

Further information on how a patent application may be converted into a utility model in European countries can be found in the National Law relating to the EPC.

Will there be Double 'patenting' issues?

Double ‘patenting’ is an important issue that needs to be considered. In many countries, protection cannot be obtained for the same invention via utility models and patents. How this is achieved varies depending on the jurisdiction. In some countries, the existence of dual protection renders a utility model granted for the same invention unenforceable if a corresponding patent for the same invention is granted (i.e. Germany).

Do renewal fees have to be paid to maintain a utility model?

Yes. Most countries require the payment of periodic renewal fees in order to maintain a utility model. Some countries do not require a fee to be paid and simply grant a utility model for a fixed term. Some countries allow late payment of a renewal fee along with a late payment surcharge.

For example, in Germany, payment of a renewal fee must be paid within two months after the end of the month of expiration of the protection period, and may still be made within a further four month period by incurring a late payment surcharge. If a utility model is registered only after expiry of the protection period, the renewal fee may be paid without a fine within four months after the end of the month in which the registration was notified, and after that with a fine until expiration of four months from the end of the month in which an official reminder was sent.

It should be noted that in countries such as for example the Czech Republic and Denmark, if a fee has not been paid, there is a grace period of six months where the renewal fee can be paid with a surcharge.

What happens if a renewal fee is not paid?

Non-payment of a renewal fee results in the utility model becoming abandoned. However, some countries (such as for example Germany) provide for restoration of a lapsed utility model. Certain conditions may apply, and are country specific.

What are my options for protecting my invention?

One of the most important aspects of protecting your invention is deciding what route to take. Whilst the options below are not exhaustive, they can provide guidance:

1. Utility model

One available option for pursuing protection would be to file separate individual utility model applications in the countries of commercial interest (subject to availability).

Not all countries offer utility model protection. In addition, whilst some countries may not have a utility model, they may offer an alternative option. This is the case in France where the equivalent of a utility model is a ‘Utility Certificate’, offering similar protection.

2. Patent Application

Another option would be to file a patent application. In the case of a European application, upon grant, the patent can be validated in the chosen countries of interest.

3. Utility model + EP Patent Application

A utility model application can be filed first, and a subsequent patent application can be filed later, claiming priority from the earlier filed utility model (within 12 months).

Once the European patent grants, it can be validated in any European Patent Convention (EPC) member state of interest. Similarly, separate utility models can be filed in different member states of interest, and a subsequent European Patent (EP) application can be filed claiming priority to all earlier filed utility models. This is an effective filing strategy where it is important to have some form of enforceable protection in place in different EPC member states during the pendency of the EP application.

Summary and Tips

Whilst a patent may offer a longer term of protection for an invention, and provide more legal certainty regarding its validity, utility models can still be useful in the interim, or for protecting inventions where patent protection is unavailable due to stricter patentability requirements.

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.

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