Utility model protection and the proposed European directive

What is a Utility Model?
Utility Models are registered rights giving protection for technical inventions in a similar fashion to patents. However, unlike patents, they are granted without an examination to establish novelty and inventive step. This means that protection can be obtained more rapidly and cheaply, but the protection is less secure and less certain.

What is the current state of Utility Model Protection in Europe?
In three member states of the European Union, the United Kingdom, Luxembourg and Sweden, no form of Utility Model protection exists. Other member states have different systems, some of which refer to Utility Models, others to Utility Certificates, Six-year Patents, Short-Term Patents, Petty Patents etc. The systems diverge widely.

Why the need for a European Directive?
The European Parliament has stated that the imperfect legal certainty inherent the Utility Model protection should not be considered an obstacle to its introduction in the Community, given that the advantages of the protection outweigh its inconveniences. The European Commission is concerned that differences between national systems are inconsistent with the objective of free movement of goods and undistorted competition in a single market. The proposed Directive will insist that member states which do not yet have a system of Utility Model protection will have to introduce one. Also, the Directive will insist that all systems of Utility Model protection are harmonised so that they have common basic rules governing protectable matter, requirements for protection and extent and duration of protection.

What inventions can be protected by Utility Models according to the Directive?,br> The proposed Directive excludes from protection inventions currently excluded by patent law, namely:

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

The proposed Utility Model Directive also excludes from patentability:

Inventions relating to biological matter; inventions relating to chemical or pharmaceutical substances or processes; and inventions involving computer programs.

What is the novelty requirement?
As with patents, absolute novelty is required, i.e. the invention claimed in the Utility Model must be new in relation to prior art comprising everything made available to the public by means of a written or oral description, by use or in any other way, before the date of filing of the Utility Model. Also, the content of earlier unpublished Utility Model applications will also be considered to be part of the prior art for novelty purposes.