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The utility of utility models

Peter Leung

Has anyone been willing to defend the utility model patent lately? Once touted as a way for developing IP regimes to take baby steps toward innovation, the “petty patent” has come under fire recently for allegedly lowering patent quality and clogging up the system to prevent breakthrough advances.

The two latest people to express doubts about the utility model patent come from India, where practitioners have previously been enthusiastic.

Munish Sudan
Munish Sudan, Tata Steel

In interviews ahead of Managing IP’s India IP and Innovation Forum in New Delhi, Tabrez Ahmad of Microsoft and Munish Sudan of Tata Steel both dismiss the idea of introducing utility model protection, saying that they think India would be better served by improving underlying IP infrastructure and reducing pendency.

Sudan says that one of the biggest problems in India is the lack of good search tools compared to more mature IP offices such as the USPTO and the EPO. With patent searches being as monumentally difficult as they already are, adding a bevy of unexamined patents into the system “may make the system more of a mess”. He also points out that the shortcomings in the patent search system can make commercialisation a challenge, because it can be difficult to conduct freedom-to-operate searches. Adding unexamined utility models of dubious quality will not make that situation any better.

Ahmad makes a similar comment: that with the lack of infrastructure at the patent office, “utility model patents will just put even more pressure on an already crumbling situation”.

India is of course not the only rising economy touting innovation as the way forward and considering utility models as an intermediate step. China is arguably the country that started the backlash. Soon after the country drew numerous headlines for becoming the world’s largest patent filer, some observers began pointing to the fact that most of those patents are actually utility models and questioned whether they are small steps toward innovation as intended.

The EU Chamber of Commerce in China released a report last August asserting that China’s IP policies, including those promoting utility model filings, put a damper on true innovation. Oliver Lutze, the chair of the Chamber’s IP working group, explained that foreign companies looking to do business in China are often dismayed by the patent landscape dominated by utility models. He told Managing IP: “For example, a company might look at China and see 50 utility model patents that can potentially hinder them. While you can invalidate a few low-quality patents, for cost reasons it is impossible to attack 50.”

What do you think? Do utility model patents help promote smaller improvements that lead to big breakthroughs, or do they act as roadblocks to real innovation?

Munish Sudan and Tabrez Ahmad will be speaking at the India IP and Innovation Forum on March 7 in New Delhi.


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