Consentia on Multidisciplinary Research

PROTECTION OF ‘JUGAAD’: FEASIBILITY OF UTILITY MODELS IN INDIA

In recent years, the protection of utility models has centralised the attention of the policy makers in developing countries, and also at the global level. At the centre of this dilemma the question remains whether utility models can serve as a medium to facilitate minor and incremental technological innovation, especially by Small and Medium Enterprises (SMEs).

If we talk about India, there is no protection of utility models, even though the same is used abundantly in the Indian Territory. According to The National Innovations Foundation, of more than 1 lakh ideas, more than 40% are qualified for the protection given to utility models. But currently, the same is being emulated, because of the lack of the concerned laws.

The current patent laws in India have a higher threshold, to which the utility models don’t qualify. So, what is needed is that, we should make a separate law for utility models, which have a comparatively lesser threshold than the patent laws. This would make it easier for the people to protect their valuable innovative technique, and thus this will act as a foundation stone for the small investors, who would generally not be in a position to commercialize their useful innovations.

This paper purports to discuss the feasibility of the utility model in the Indian scenario, and at the same time it compares the utility model system of various countries, so that best can be drawn out of them.

INTRODUCTION

 Utility Models can be defined as “a statutory monopoly granted for a limited time in exchange for an inventor providing sufficient teaching of his or her invention to permit a person of ordinary skill in the relevant art to perform the invention. The rights conferred by utility model laws are very similar to those granted by patent laws, but are more suited to what may be considered as “incremental inventions” ”[1]. It means that utility models are intellectual property rights which are to protect innovations and inventions. It is an exclusive right granted for an invention, for a limited period of time, which allows the holder of the right to prevent others from commercially using the invention, without his authorization.

The idea of utility models is very similar to the patent, but usually has a shorter term (often 6 to 15 years) and less stringent patentability requirements, which differs from one country to another. For that reason utility models are often referred to as “Petty Patents” or “Innovation Patents”. Some of the examples[2] of utility models are as follows:

  • 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.
  • Electric/Telephone Pole climber: This portable device assists in climbing electric/telephone poles by using the climber’s body weight to lock the climbing steps. It is very light, low cost and easy to maintain.
  • A ‘Ribbed Pan (Tawa)’, with the heating surface made of aluminium, with ribs at the bottom. This design increases the surface area available for heating and thus improves the heating capacity of the tawa, minimising energy use.
  • 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.

In recent years, the protection of utility models has centralised the attention of the policy makers in developing countries, and also at the global level. Internationally, a significant number of countries provide protection to utility models. These include Australia (known as Innovation Patent), Belgium, Ireland, Netherlands (known as Short Term Patents), France (known as Utility Certificates), Indonesia (known as Simple Patents), Vietnam (known as Utility Solutions), Malaysia (known as Utility Innovations), Austria, Germany (known as Gebrauchsmuster).

But in India, there is no protection of utility models, even though the same is used abundantly in the Indian Territory. According to The National Innovations Foundation, of more than 1 lakh ideas, more than 40% are qualified for the protection given to utility models. But currently, the same is being emulated, because of the lack of the concerned laws. The current patent laws in India have a higher threshold, to which the utility models don’t qualify. So, what is needed is that, we should make a separate law for utility models, which have a comparatively lesser threshold than the patent laws. This would make it easier for the people to protect their valuable innovative technique, and thus this will act as a foundation stone for the small investors, who would generally not be in a position to commercialize their useful innovations.

INTERNATIONAL AGREEMENT FOR DEVELOPMENT OF UTILITY MODEL FRAMEWORK

 

Paris Convention:

 

The Paris Convention for the protection of Industrial Property was established in 1883, and India joined it in 1998. Apart from patents, industrial designs and trademarks, the Convention covers utility models, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition[3].

Patent Cooperation Treaty:                                                           

The Patent Cooperation Treaty entered into force in 1978. India has been a member since 1998. This treaty which mainly deals with patent filing procedures also provides for filing of utility model applications[4]. The treaty enables applicants filing an international application for the grant of patent to claim priority based on their utility model application. The provisions of this treaty also construe the reference to patents, unless expressly stated otherwise, as patents for inventions, inventors’ certificates, utility certificates, utility models, patents or certificates of addition, inventors’ certificate of addition and utility certificates of addition[5]. Thus the Treaty permits filing of Utility Model applications through the National phase utilizing the priority dates and flexibilities applicable to patents.

The TRIPS Agreement:

 

Trade-Related Aspects of Intellectual Property Rights (TRIPS) came into force in 1995, and India has been its member since inception. The agreement talks about utility model in an inherent way, Part I of this Agreement (Article 2, 3 and 4) refer to the provisions of Paris Convention. Further, Article 1 mentions “Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.” Thus member countries have an option to embrace the utility model system.

FEASABILITY OF UTILITY MODELS IN INDIA

On global level India remains a way behind in granting patents, in comparison to other countries. If we see the data of 2009, India granted a mere amount of 6168 patents to its people. However, this mere amount gets lesser if we consider only the Indian companies which were granted patents. Table number 2 tells us the number and percentage of the Indian companies that were granted a patent in a year. It shows us a decrease in the number of patents granted to Indian companies, with the lowest percentage being in 2011 i.e. 17%.

NUMBER OF PATENTS GRANTED IN 2009 (TABLE 1)[6]

NAME OF COUNTRY PATENTS GRANTED IN 2009
CHINA 128489
JAPAN 193449

 

GERMANY 14577
KOREA 56732

 

TAIWAN 14138

 

AUSTRALIA 2971

 

BRAZIL 284
UNITED STATES OF AMERICA 135193

 

UNITED KINGDOM 10947

 

INDIA 6168

PATENTS GRANTED IN INDIA TO INDIANS (TABLE 2)[7]

YEAR NUMBER OF PATENTS GRANTED %AGE OF INDIAN PATENTS GRANTED
INDIAN FOREIGN TOTAL
1999-2000 557 1324 1881 30
2000-2001 399 919 1318 30
2001-2002 654 937 1591 41
2002-2003 494 885 1379 36
2003-2004 945 1524 2469 38
2004-2005 764 1147 1911 40
2005-2006 1396 2924 4320 32
2006-2007 1907 5632 7539 25
2007-2008 3173 12088 15261 21
2008-2009 2541 13520 16061 16
2009-2010 1725 4443 6168 28
2010-2011 1272 6214 7486 17

The facts clearly shows us the declining percentage of the patents granted to Indian companies, a major reason for this is because a majority of the inventions are not able to qualify to the standard of the patent as according to the Indian Law. A major reason behind this is absence of laws regarding Utility Models. According to The National Innovations Foundation, of more than 1 lakh ideas, more than 40% are qualified for the protection given to utility models. But due to lack of concerned laws, these petty innovations are ending up in trash. Moreover small innovators are not aware of the technicalities of the patent, so utility model laws can best suit to their needs and requirements.

CONCLUSION

After having a look over all the facts and tables we can clearly conclude that there is urgency for utility model laws in India. In a country like India we need to promote and encourage our innovators and artisan to participate in the economic development of the nation[8]. We need to assure them that a cheaper and a feasible way exist to protect their invention. Internationally, all major countries have utility model laws in one or other form.  The National Innovations Foundation has already said in its report that of more than 1 lakh ideas, more than 40% are qualified for the protection given to utility models. In the absence of the concerned laws these innovations are ending up in no benefit to the innovator.

The proposed Utility Model law basically aims to promote innovation and initiatives of innovators. The law will boost up the morale of innovators and may result into plethora of patents and utility models.

So, what is needed is that, we should make a separate law for utility models, which have a comparatively lesser threshold than the patent laws. This would make it easier for the people to protect their valuable innovative technique, and thus this will act as a foundation stone for the small investors, who would generally not be in a position to commercialize their useful innovations.

[1]  U. Suthersanen, Incremental Inventions in Europe: A Legal and Economic Appraisal of Second Tier Patents, in Journal of Business Law, 2001, 319 ff

[2] Source: www.5award.nif.org.in  These innovations  were included in the 5th Biennial Awards 2010 of the National Innovation Foundation.

[3] Paris Convention, Article 1.1

[4] Patent Cooperation Treaty, Article 2(i)

[5] Patent Cooperation Treaty, Article 2(ii)

[6] Source WIPO statistics and Indian Patent Office

[7] Source : Indian Patent Office

[8]Divya Pandey & Rishu Srivastava, Issues for consideration on utility models, http://www.ssrana.in/Admin%5CUploadDocument%5CArticle%5CDIPP-%20Suggestions%20on%20Utility%20Model-final.pdf.

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