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Outline of Utility Model System Outline of Utility Model System Japan Patent Office Asia-Pacific Industrial Property Center, JIII ©2006 Collaborator : Ken-ichi KUMAGAI Professor, Intellectual Property Law, Kyushu University, Graduate School of Law Table of Contents pages I Purpose of Utility Model Systems ·············································· 1 II History of the Utility Model System ··········································· 3 1. Utility Model System of 1905 ················································· 3 (1) Utility Model Systems in Other Countries ···························· 3 (2) History of the Utility Model System in Japan ······················· 4 (3) Major Items of Contents ····················································· 5 (4) Status of Use ······································································12 (5) Later Revisions ··································································12 2. Utility Model System of 1921 ·················································13 (1) Grounds for Revision ··························································13 (2) Major Items of Content ·······················································14 III Recent Utility Model Systems ····················································16 1. Utility Model System of 1959 ·················································16 (1) Grounds for Revision ··························································16 (2) Outlines of Utility Model-Related Recommendations by Industrial Property Laws’ Revisions Study Council ··············18 (3) Major Items of Contents ·····················································20 2. Later Transition of the Utility Model System ··························22 (1) Utility Model Law of 1965 ··················································22 - i - (2) Utility Model Law of 1970 ··················································25 (3) Revision of 1975 ································································29 (4) Other Revisions ··································································29 (5) Utility Model Law-Related Problems ···································30 IV Present Utility Model System ····················································37 1. Reform of Utility Model System ·············································37 2. 1993 Amendment of Utility Model Law ··································38 (1) Outlines of Recommendations by Council ······························38 (2) Major Items of Contents ·····················································39 3. 2004 Amendment of Utility Model Law ···································45 (1) Outlines of Recommendations by Council ······························45 (2) Major Amendments ····························································46 4. Outlines of Examination Guidelines for Utility Model Registration ········································48 (1) Operation Guidelines for Utility Model Registration ··············48 (2) Examination Standards for the Creation of Utility Model Technology Evaluations ·······················52 - ii - I. Purpose of Utility Model Systems The utility model system has the closest relationship to the patent system . In the patent system or industrial countries, the creation of a technical idea is protected only under patent law whereas it is protected under two separate laws in Japan, i.e., the Patent Law and the Utility Model Law. The Patent Law and the Utility Model Law in Japan had very similar legal systems and was in general closely related. However, the present Utility Model Law incorporated a non-examination registration system in its revision in 1993, which made the two legal systems very different. A utility model system is a system which has been developed to complement a patent system in a country where so-called petty inventions are not given proper consideration and often refused patents under patent law yet such inventions needs to be actively protected and promoted from an industrial viewpoint. The Japanese patent system was established in 1885. Through its operations, it was later found that the technical level of Japanese inventions was low compared with the majority of inventions relating to the improvement of basic technologies introduced from abroad. From an industrial viewpoint, the necessity was raised to separately establish a utility model system which can actively protect and promote petty inventions. In 1905, the Japanese Utility Model Law was adopted based on the German Utility Model Law. The law was then revised in 1909 and 1921. In 1959, the present Utility Model Law was adopted. From 1960, the year after the adoption of the Utility Model Law, to 1980, the number of utility model applications continued to surpass that of patent - 1 - applications. In 1981, the relationship between utility model applications and patent applicants reversed with the number of utility model applications dropping to 77,101 in 1993, less than one quarter of patent applications totaling 366,486 in that year. To counter this, the Utility Model Law was significantly revised in 1993 with all revisions put into effect beginning January 1, 1994,whereby the system excluded a substantive examination when registering. Furthermore, the law was again revised in 2004, with all revisions put into effect beginning April 1, 2005, whereby Utility Model Applications could be changed to Patent Applications, and the duration and scope of corrections were both expanded. Some countries currently employing a utility model system besides Japan include Germany, France, Italy, Spain, Portugal, Brazil, Poland, Mexico, the Philippines, Uruguay, South Korea, Taiwan, Australia, Chile, Morocco, OAPI member countries in Africa, China, Greece, Finland, Malaysia, Guatemala, Indonesia, Russia, and Ukraine, Estonia. Among utility model systems adopted in these countries, France’s certificates d’utilite is different from others in that the laws are not designed to protect petty inventions (requiring the same inventiveness as required under the Patent Law and providing the same protection as provided under the Patent Law, covering a process invention). This system supplemented the Patent Law and distinguished the period of its protection from that of a patent. In this respect, the French system is similar to the petty patent system in Australia and the utility model system in China. - 2 - II. History of the Utility Model System 1. Utility Model System of 1905 (1) Utility Model Systems in Other Countries The world’s first utility model system was the Designs and Copyright Act promulgated in Britain in 1843, under which the novel device of a product for a utility purpose was granted three years of protection. This ordinance was adopted as supplementary provisions to the design ordinance promulgated in 1842. Forty years later, the ordinance was abolished and replaced by the Patents, Designs and Trademarks Act in 1883 under which a model equipped with a utility purpose like a model equipped with an aesthetic purpose, judged as an industrially novel, was protected as a design. In Germany whose utility model system provided a basis for the utility model system in Japan, the “Law Concerning Copyrights of Designs and Models (Gesetz betreffend des urhe berrecht an Mustern und Moddellen)” was adopted in 1876 to promote the German craftwork and industry. The move was largely supported by the Association of German Engineers (Verein Deutsche Ingeniere) which was at that time campaigning for the adoption of a unified patent law. The drafter of the law and the people concerned expected that under the law defining the subject of protection as a “novel and special design,” a novel design including a utility model, whether it is equipped with a utility purpose or an aesthetic purpose, can be protected as a design. However, the Federal German High Court of Commerce in 1878 ruled that the subject of protection applicable under the law should be limited to a novel and creative patterns, colors and shapes of articles satisfying the taste of people, i.e., - 3 - a design equipped with an aesthetic purpose, and the law should not be applicable to a device equipped with a utility purpose. In Germany before the enforcement of its civil code, industrial property rights were not largely recognized in court, the situation called for various legislative measures to be taken to protect industrial property rights. The German Patent Office had to increasingly refuse low-tech patent applications. The Association of German Engineers pointed out the need for a law to protect utility models and demanded for the establishment of a utility model law. In 1876, a committee was set up to study a revision of the patent law and, as a result of its study, admitted the necessity to adopt a special law concerning utility models. In 1891, the “Utility Model Protection Law” was promulgated as the world’s first independent law of its kind, on which many countries besides Japan have based their respective utility model systems, including countries such as Poland, Spain, Italy, Portugal, Brazil, etc. The present German utility model law, last revised in 1990, features the following. ① The scope of protection extends to chemical substances not covered by process, circuits, etc. with three-dimensional requirements abolished. ② The term of protection is a maximum of 10 years (initially three years, extendable for three years and then twice for another two years, totaling 10 years). ③ A registration is granted without an examination. ④ A search report system is available. (2) History of the
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