The Utility Model And The Protection Of Incremental Innovations

Author:Mr Jorge Machado
Profession:Clarke, Modet & Co

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...

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