Utility models
- Introduction and general background of the exceptions and limitations to the principle by which patents should be granted to all inventions in all fields of technology.
When analyzing the validity element of the three tier analysis that inspired the TRIPS PLUS ULTRA proposal we´ve said that the TRIPS Agreement sets a global standard, and that this global standard admits exceptions and limitations. We’ve also say that the harmonized aspects (the uniform core or heart of the global patent) are by far more relevant than those that are not harmonized, taking as a parameter to this conclusion the patent legal institution as a whole (a legal institution is the set of rules that gives life to an abstract concept). Nonetheless, it is worth analyzing this exceptions and limitations with detail.
One of the posible limitations that countries may establish within their borders regards the patentable subject matter (exceptions to the patentability of certain products, e.i., determining certain inventions as non-patentable subject matter). According to the general principle of the TRIPS Agreement, patents should be granted to all inventions in all fields of technology. This principle admits exceptions (or leves each country liberty to regulate the issue).
2. The exception: utility models.
In the case of utility models the TRIPS Agreement has given each country the liberty to address the issue freely. An utility model (also known petty patents, utility certificates, certificat d’utilité, short-term patent) is a protection that is given to innovators, in which the analysis of whether the innovation is worthy-of-protection is more lax and the period of protection is shorter. Utility models are simpler, faster, and more economical.
The regulation of utility models is not part of the global agreement of protection, and developing countries typically will not want it to be (they resent and resist the currently system, that hurts them, and any of its expressions), although most of them typically do establish protection for utility models within their borders. The protection that incremental innovation in the developing world gets (which is probably the innovation they are more likely to produce) by this form of protection is circumscribed to their territory, though. Could this protection become global? If the TRIPS PLUS ULTRA was implemented, this could change.
(Go back to the patentable subject mater analysis for other ways the principle that state that patents should be granted to all inventions in all fields of technology could be limited.)