Portugal: The Utility Model And The Protection Of Incremental Innovations

Last Updated: 18 May 2017
Article by Jorge Machado

Incremental innovation is defined as the one which reflects small improvements in products, product lines or processes, small gains in benefits perceived by consumers, but which do not significantly change the way the product is consumed or used. 

These improvements, often lack, in the light of patentability requirements, the "technical effect" unexpected for an expert in the area, necessary so it may lead to the conclusion that they may be protected by an Invention Patent. This is the detail, which makes all the difference, that may have us think of the Utility Model as a means of protection from those improvements. National legislation is clear as to the fulfilment of this requirement and does not require the solution to have the said unexpected "technical effect", but simply having to prove itself as being of a practical or technical advantage, and thus representing a less demanding concept of inventive step than that applied in the  context of patents. However,, the advantages of this type of protection to inventions do not stop here.

A faster administrative procedure is also another of the interesting features of Utility Models. In fact, we may have the grant of right guaranteed for a period of 9 months – substantially less when comparing the procedure with that of the Invention Patents, and it is not difficult to understand that , given these characteristics, the Utility Model may indeed be a fairly valid option. If we take into account that many of today's innovations are often incremental, especially those coming from SMEs  - or even individual inventors - , mostly in the business framework of many countries, we should therefore, realize why the Utility Models are in a minority when it comes to figures, especially  when compared to submissions of Invention Patent applications – in Portugal, Utility Model applications are less than 10% of Invention Patent applications (2015 data) - , which, in a country where SMEs are in the majority, may be something to think about. Which reasons are leading to this kind of situation? Lack of knowledge about the advantages of this modality? Costs?  Enforcement?

The difficulty in understanding the sometimes tenuous frontier between a "technical advantage" and an unexpected "technical effect"? Perhaps it is by summing up all these  aspects that the applicants often choose the Invention Patent. This is where the work of the Industrial Property Official Agent is crucial, since it is up to him, by virtue of his job, to study the context in which the request for protection of the invention is made. In the first place, understanding the scope of protection appropriate to the market intended for that invention.

One of the usual disadvantages associated with Utility Markets is that such rights are not available  in  a number of countries, however, those countries where the modality exists – except for the USA – are also countries where most applicants have commercial interests and, therefore, this issue may be overcome with relative ease. Another relevant question is whether we are, in fact, in the presence of an incremental invention and if it complies with the usual patentability requirements, that is, the novelty, the inventive step and the industrial application. That´s because, a good knowledge of the market by the inventor is not always enough to ensure that those requirements will be met. A research to the State of the Art is recommended so as to avoid any possible gaps. As a matter of fact,  this exercise may soon help clarify the merits of the technology developed, from the perspective of compliance with the inventive step requirement both regarding inventiveness (the presence of such an unexpected technical effect) or the technical advantage associated with it, proving to be, to that extent, a good instrument to circumvent such an important requirement. Finally, we have the cost issue. One of the benefits of utility models will be to guarantee the granting of Right at a lower cost when compared to the usual applications for an Invention Patent. This assumption should be properly assessed, seeing that costs may vary substantially from jurisdiction to jurisdiction, not only at the time of application but in the maintenance of the right. These factors should be in line with the expected lifetime of the product or process.

Let us say that these are the fundamental assumptions until we reach the conclusion that the Utility Model is really the most suitable option. This modality may indeed meet the actual purposes and needs of the companies, in terms of their innovation results protection, especially the incremental one. However, it is crucial to analyse all variables involved before making a decision. Only in this way will Utility Models serve the purposes for which they were created and may cease to be a tactical subterfuge usually used whenever protection by the Invention Patent proves fruitless, because when in the presence of such a scenario, it means that both technical and financial resources have already been misused.

Clarke, Modet & Co - PORTUGAL

Portugal Offices

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions