The Indian Need of a Utility Patenting Model

Utility patent is one of the three types of patents available in the United States of America. Based on the basic requirement of usefulness, the claimed ‘use’ should exist for a utility patent to be granted. In US, utility patents are granted for Machines, Articles of manufacture, Process (Business process etc) and Composition of matter.

Utility Patents are different from Design Patents. Design patents are for original, novel and ornamental designs. Unlike utility patents, design patents do not require further maintenance post the grant.  Design Patents are almost like a subset of Utility Patent and Copyright. It requires Novelty and Innovation at the same time gives importance aesthetic quality of the design. Utility patents are granted for 20years whereas Design patents are granted for 15years in the US. But generally Utility patents are granted for 7- 10 years. Utility patents do not require the criteria of ‘inventiveness’ as under TRIPs.

The Utility Model patent as of now does not exist in India. The present tedious patenting process could be blamed for almost 78% of patent applications in India by non- residents, as seen recent studies. Utility Model of patenting has a reduced criterion of Non-Obviousness or Inventive step. The Utility Model in some countries only requires a preliminary examination before grant. Though Novelty is a criterion here too, but the standard varies from country to country. Like in Canada the standard is a bit heighten as compared to other countries like US, by the “Promise Doctrine”. The Promise Doctrine requires the patentee to promise a specific utility of the invention in its patent specification. This specific utility has to be proven by the patentee at the time of Canadian Filing date. Utility Model therefore exists in major jurisdictions, with varying rules.

India presently needs such Patent utility model, as it simplifies the long and strenuous existing patenting process. It would also be a boost to small and medium enterprises, which do not have large financial funding for conducting test and trials for the strict patenting criterion and usually loose the grant.