Model --- Title for Cheating or Confusing the World?
As is notoriously known in the patent society, any suitable person-made creation or invention can be subject to be sought for protection before the respective governmental authority, i.e. the Patent Office or the Intellectual Property Office. Generally, ¡¥patent¡¦ means in most countries a standard or regular invention normally relating to technical idea or concept. There still are two other relevant categories, namely utility model and design. The former sometimes is referred to as a petty or small patent by which it can be known that the utility model has a smaller ¡¥technical inventiveness¡¦ when compared to the regular patent. As to design, it is easily distinguishable from patent and/or utility model in that design is referred to the outer appearance of an article while utility model and/or patent are related to a technical idea, which normally is imaginable but needs not be necessarily tangible as design does.
Literally, utility model is ¡¥merely¡¦ a model, which is utility, but is not so ¡¥great¡¦ as to be called an invention, and therefore has a nickname, petty or small ¡¥patent¡¦, which is actually ¡¥another kind¡¦ of patent. Conventionally, in order not to confuse with the ¡¥real or regular¡¦ patent, utility model is just called utility model but not utility model patent in most of countries all over the world. By the same token, design is normally called design but not design patent. As design is also designed to protect industrial products as patent and utility model are, all of them, however, are governed by the same authority in every country for simplicity. Nevertheless, they are respectively provided in different laws in many countries. In Japan, they were enacted into laws at the same day whereas in Germany, they were passed into laws on different days.
For the sake of simplicity, however, it is more straightforward to incorporate different laws for patent, utility model and design into Act of Patents in the United States or the Patent Law in Taiwan. For the US, the oddity is much lighter when compared with Taiwan in that the US does not have the provision of utility model and provides in Chapter 16 of its patent law only 3 articles in totality for designs. So far as the Patent Law of Taiwan is concerned, it incorporates therein articles for patent, utility model and design. More specifically, the Taiwan Patent Law in fact includes provisions for invention patent, utility model patent and design patent. Since ¡¥patents¡¦ have such three types, according to thoughts here, they should be stipulated in the same law. To believe that Taiwan Patent Law merely combines together three sub-laws is equally true as to consider that Taiwan Patent Law is enacted to cover three categories of patents.
Summary of developments
It is to be noticed that in the past (before January 1995), it appears that it is generally safe for us to say there are only two territories, namely the US and Taiwan out of countries all over the world that frequently issue an office action on the merits of an application generally within one year from its filing date. It is also well-known that some territories, e.g. Japan, German or European Patent Office will not issue their actions until 3 years or even more than 5 years from the filing date of respective applications have been lapsed. We do not have many opportunities to ask opinions from relevant foreign nationals on how they feel about such practice that it costs 3 or 5 years to have their patent applications officially examined. People here, nevertheless, always complain about or stand powerless before such practice since the fact that a consumer product is phased out to the root not more than 5 years is never peculiar. Perhaps, this is one of the reasons why the system of allowing registration of a ¡¥patent¡¦ without examination comes out.
It is getting more and more common for countries on earth to adopt the system of utility model which requires no substantive examination. Such advocacy can also be found in the US and Taiwan but nevertheless has not been officially accepted in either territory yet. Systems for utility model in many countries are complicate and diversified. In France, the exact term is Certificate of Utility which is largely the same with Patent, except the protecting term and the necessity of requesting a novelty search which means that no substantive examination is required therefor. Specifically, Certificate of Utility can protect subject matter seeking patented a method or a process. In Germany, the utility model, requiring a lower level of inventive step when compared to patent, which is not the case so far as the Certificate of Utility in France is concerned, can normally be sought registered to obtain a certificate of utility model in about 3 to 6 months without substantive examination. More interestingly, a German utility model has two features that it can coexist with a patent application and it has a novelty requirement looser than that for patent, which can be seen from Article 3(1) of German Utility Model Act which reads as follows:
¡§The subject-matter of a utility model shall be considered to be new if it does not form part of the state of the art. The state of the art comprises any knowledge made available to the public by means of a written description, or by use within the jurisdiction of this Act, prior to the date relevant for the priority of the application. Any description or use within six months prior to the date relevant for the priority of the application shall be disregarded if it is based upon the work of the applicant or his predecessor in title.¡¨
It appears to be generally correct for us to say that with the exception of these two features, such German utility model system is the ¡¥standard model¡¦ of many countries having adopted or intending to adopt such system. Effective from January 1, 1994, Japan changed its utility model system into one without substantive examination but with a lifetime of 6 years which is shorter than 10 years for the utility model in Germany subject to prolongation petitions at 3, 6 and 8 years. Mainland China provides the utility model to be registered with a term of 10 years subject to annual payments of maintenance fees. As stated, it has been the trend of countries all over the world to change or modify their utility model into one only requiring formally registered without substantive examination.
Brief Items to be Discussed for Presenting Issues We Concern
*Major incentive factors for the applicant to file a utility model
*Major reasons for the patent attorney happy to receive instructions for utility model
*Advantages and disadvantages utility model registration raises
*Does there exist a solution for utility model
+Major Incentive Factors for Applicant to File Utility Model
Damages in tens or hundreds of millions for a patent infringement are not seldom found in a US suit. Thanks to US 337 Sanctions and 301 Priority List, many countries are forced to strengthen their protection measures for intellectual property rights. As a result, local courts often exercise their strict punishments over offenders of intellectual property rights predominantly owned by US nationals in response to the US pressures. Under such background, local attorneys honor themselves on the one hand by trying to educate their countrypersons about knowledge related to intellectual property rights and recognize on the other hand that education is an effective measure for their business-solicitation. Through such channel, local nationals, juristic or natural, get vivid impression or clear message that to seek protections of intellectual property rights (IPRs), especially patents is an indispensable means to survive in nowaday society upon operating a business.
To know the importance of patent is one thing, whereas to fully understand what kind of protection has been obtained through what kind of procedure is another thing. Between these two things, there is a big trench formed by a lot of factors which are briefly and partly outlined hereinafter:
1) Patent is a kind of monopoly. Specifically, it is an exclusive right, as is already well-known. Every business-owner desires to have a unique technique by which it can enjoy the legal exclusive rights and enjoin others from sharing therewith in the market in order to marvelously present itself before the world stage. Patent is such a tool that might allow that desire to come true. It is therefore why so many people want to apply patent applications. Nevertheless, person is born with limitations and tends to value his own worn broom. An invention that inventor or applicant considers to be a masterpiece assumed to be able to conveniently supersede all old substitutes, however, does not necessarily successfully bring therefor eventual commercial interests. The prosecution of a patent application, however, is normally time-consuming and costly. After several times of unpleasant experience in this respect, small- or even medium-sized applicants tend to register their inventions as utility models without substantive examination. Under such philosophy, an invention filed as utility model is threatening more than attacking, armoring the IPRs portfolio more than threatening the competitors, and protective more than pursuing. Normally, the protection a utility model provides is not inferior to that a patent provides except the protection period. This is a major reason that the corporate managing department does not reject the corporate creations to be protected by utility models;
2) For a large-sized company, a utility model might be more powerful. Theoretically, under liberalism and capitalism, every one is born to be equal. Nevertheless, economic conditions normally set different competing positions on which respective parties stand. Specifically, to get involved in a patent dispute normally means the necessity of expending much money that a small- or medium-sized entity might be unable to afford or would try its every efforts to stay away therefrom. As a large company often has a far superior economic situation, sometimes, it can effectively compel its opponent to surrender before the threat of a court proceeding, which might even be caused to run or develop to some extent in order to enhance the possibility of a successful threat;
3) For providing motives or incentives for encouraging researchers and developers in a company to submit disclosures for evaluations for patent filings, inside rules are so proposed. Such rules normally contain provisions of money awards respectively available by inventors at the time points when the initial disclosure is submitted, a patent therefor is successfully sought and a royalty derived thereby is reaped. Since it is uncertain whether a patent can finally be granted to allow the inventor to enjoy the money award given upon being patented, it is definite that a utility model would be automatically registered to obtain for the inventor the relevant money award. It is not seldom found that some inventors would like their ¡¥improved creations¡¦ to be protected by a utility model even though the money award for a patent might be higher than that for a utility model;
4) Corporate owners oftentimes have sound opportunities to learn the importance of seeking patent protection but do not normally have good chances to ascertain what kind of protection shall be sought and whether suitable protections for specific creations have been made. IPRs managers could play an important role. Does IPRs-relevant manager fully understand categories of the patent system? Has he or she comprehensively communicated with the corporate owner? Does he or she need a nice-looking number showing how many applications have favorably been completed prosecution to account for his or her excellent performance?
Major reasons for patent attorney happy to receive instructions for utility models
Under market competition rule, quality service with competent price will win opportunities for providing service. This, nevertheless, is merely a theory or an ideal model for market competition rather than will necessarily happen in real life. Although the utility model application cannot readily make it apparent that a specific law firm provides a quality service, we can boldly comment that at least, the law firm will not reject the order for filing a utility model. This is at least partly because:
1) Generally, a law firm will prosper if it can provide quality services. A prosperous law firm needs new associates to receive additional works. It takes, however, some time for new associates to get accustomed to the culture of the law firm. Preparing a utility model application automatically getting matured into registration even by a new associate is not easy to reflect or present problems occurred during the period of cultural accommodation of new associates;
2) For most clients, prosecution results are an important factor for their evaluation whether the law firm is appropriate. Since all utility model will become registered, the success rate is 100%. Although this is not an excellent way to demonstrate the quality a law firm can provide, many clients are willing to trust their law firms if law firms have shown to them the statistical data since some clients have no intention to differentiate a granted examined patent from an automatical registered utility model;
3) The procedure for preparing a utility model application is much the same as that for a patent application so that the service fee a law firm can charge the client is nearly the same. So far as the relationship between law firm and client is concerned, filing a utility model only with formal examination is profitable and beneficial for cheering the client.
Advantages and disadvantages utility model registration raises
Advantages on the one hand are always accompanied by disadvantages on the other hand. We would like to set forth advantages the utility model registration having brought forth as follows:
1) The relevant IPR of the applicant is formally protected by utility model registration by which the applicant is encouraged to respect IPRs of others and exercise more research works for further developing new techniques to improve the life of human being;
2) The possibly lengthy prosecution procedure for patenting the invention is obviated;
3) The possibly costly prosecution procedure for seeking patented the invention is temporarily avoided. This and the preceding one are especially advantageous upon considering the fact that according to some statistical data, only about 3% of issued patents might have the possibility to bring to the patentee commercial interests. As a result, the applicant could save unnecessary expenses in connection with the rest 97% of issued patents. This is not only advantageous in the side of the applicant but also in the side of the official authority in that the authority needs not be equipped with manpower for manipulating 97% works which are statistically proven to be unnecessary. This is particularly welcome nowadays in every country desiring to squeeze the size of the governmental agency;
4) The utility model system provides a harbor for nesting therein marginal inventions which mean that whether the invention can survive over the scrutiny of the non-obviousness is uncertain from the view point of either the applicant or the examiner. By the registration, dilemma of or battle between applicant or/and examiner obtain a truce;
5) After registration of a utility model, the applicant has obtained an official right with which ¡¥a useful weapon in litigation¡¦ is produced. Exemplarily, Article 11(1) of German Utility Model Act provides: ¡§the registration of a utility model shall have the effect that the proprietor alone shall be entitled to use the subject-matter of the utility model. Any third party, not having his consent, shall be prohibited from making, offering, putting on the market or using a product which is the subject-matte of the utility model, or importing or stocking such a product for these purposes.¡¨ Article 13(1) of the same Act provides: ¡§protection of a utility model shall not result from registration insofar as any person has a claim for cancellation against the person registered as the proprietor.¡¨ Specifically, unless there is a claim for cancellation against the registered proprietor, the registered utility model is can be as powerful as a granted patent.
While there might be another advantages the utility model system can operate to provide, it is more interesting, remarkable and worthy to discuss how and why the utility model system has generated what kinds of issues or disadvantages as outlined in the following:
1) A registered utility model might be as powerful as a granted patent but needs not be substantively examined. This will allow the registrant to arbitrarily bring a suit against an accused infringer. The registrant might withdraw a suit after a claim of cancellation has been uttered by the infringer. Although German laws provide the possibility of damages including the attorney fees against the party losing the suit, the alleged infringer ineluctably suffers from unduly pressures by such system, especially for a small-sized party. The following two facts might also be true that although conglomerated enterprises are no more strange and the accused infringer might be such entity, the accused infringer needs not be embarrassed by the economic situation. Although the unfair competition rule or antitrust rule have been enacted into laws in many countries, the conglomerated enterprise needs not have the opportunity to grow into an immoral giant to rudely play the law game. The general public or possible accused infringer, however, have been forced to stay in a position to fight against a greedy utility model registrant for clarifying there indeed exists no patent dispute or the utility model is in fact null and void;
2) The utility model is registered without substantive examination so that whether the asserted ¡¥creation¡¦ in the registered utility model does meet the requirements of patentability is not definite. The law does not always require the registrant prove that its utility model does comply with the patentable requirements before it can take any action against the possible infringer. Specifically, even if the registrant of an invalid or unpatentable utility model can still freely take a legal action against an accused innocent infringer. The calm life of the innocent infringer might thus be disturbed. The primitive mild temper of the innocent infringer might be driven to deteriorate. The free spirit of the innocent infringer is cruelly invaded. Although the law might provide that the innocent infringer would be able to claim damages against the imprudently pursuing registrant, the position of the imprudent registrant is enhanced by the issuance of the certificate of utility model by the governmental authority. Person is born to have kinds of rights including one free from threat, panic and fear. It is this utility model system registering the right for a proprietor without substantive examination, which contributes the difficulties toward which a person must face in order to lead his peaceful, leisurely and carefree life;
3) As stated earlier, a utility model is registered without substantive examination so that whether the registrant does have a right is uncertain. Some IPR manager in the business might not exactly know the difference between patent and utility model. It is even quite possible that most of the business owners might not definitely know that the legal effect of a utility model registration is not the same as that of a granted patent. While to obtain a lot of utility model registration certificates does not necessarily mean that the applicant does have made a great many of successful researches and developments, the applicant does somehow get satisfied what it has performed with regard to innovation and creation. If what the law has provided might mislead or confuse the general public to know the truth of a specific event, are you willing to be prepared to rely on the law to lead your regular life?
4) The law is to protect the general public to happily guide their daily lives. The law should not induce the national to cheat itself into believing it has made a remarkable advance through some of its behaviors. Unfortunately, the utility model registration is such a system causing the registrant to conceive the misbelief that it has performed some technical progress which is protectable under the applicable law and that it might be greatly benefited by the exercise of this intellectual property right;
5) As is well-established, there is no necessity for the copyright to seek registration in most of countries in the world under the rationale that wherever there is a creation, there is a protection. If we can wonderfully live on the earth without a preceding copyright registration, what are strong reasons compelling us to adopt the utility model registration system? Does the government desire to collect the annuity fees? Does the patent attorney need work opportunities? Does the patent attorney want to make much more money? Does the world become more lovely with adoption of the utility model registration? In a copyright infringement, the copyright owner must prove it has a copyrightible work before the court. Analogously, it appears to be perfectly sound for the utility model proprietor to prove it has a registrable and protectable creation before it wants to claim infringement before the court. Could we find enough reasons to convince and persuade ourselves into believing that this world does require the utility model registration system in order that the human being can lead a better life? Are all the above problems listed here applicable to the design registration without substantive examination? Considering the fact that it appears that the occasion the copyright infringement occurs is never less than that the utility model infringement occurs, could we feel at ease before the fact that the utility model requires a registration system while the copyright does not? Does the utility model registration system deserve to be reserved simply because the utility model might involve in a more complicate technology? Isn¡¦t it a truth that the simpler the apparent phenomenon is, the more difficult and the harder our researching works might be?
6) For a specific event, advantages on one side or from a specific viewpoint are always accompanied by or straightforwardly mean disadvantages on the other side or from another viewpoint. Accordingly, apparent disadvantages do not necessitate our worries but do sometimes represent enormous advantages. After realizing advantages and disadvantages with respect to the utility model registration above-described, is our potential consciousness capable of surviving over kinds of challenges that positive advantageous factors for adopting utility model registration system are far more dominant than negative disadvantageous factors for abolishing utility model registration system?
Does there exist a solution for utility model?
Presently, it is getting rare and rare that a territory maintains a patent and a utility model, both of which are to be examined to the substance. Japan has surrendered to the advantages brought forward by the substantive examination-free utility model registration since January 1994. A typical survivor is Taiwan, which, however, keeps substantive examination for the utility model not because it knows much about the substance of utility model and tries to strive for its existence but because there is a saying that ¡¥the law is always behind the technology¡¦ and it does not have enough time to respond thereto. Recognized ¡¥advantageous¡¦ advantages of the utility model registration system has overwhelmed ¡¥disadvantageous¡¦ disadvantages and conquered the world. Concrete actions and advocating voices have nearly succeeded to put the utility model registration into practice before the European Patent Office and bothered the US Patent Office to some extent.
The line delimiting patent from utility model is unclear. Although a hypothetical person in the patent society is fine to draw the delimiting line, the question who is the hypothetical person is not easy to answer. In Taiwan practice, according to opinions coming from patent attorneys, applicants and/or inventors, it is not seldom to find a small improvement allowed as an invention patent and a significant creation compelled to be converted into a utility model patent. As a simple example, according to the Taiwan Patent Law, a method or process can only be sought for an invention patent. It is thus easy to conclude whatever small or light improvement with respect to method or process has been involved in, the improvement can be legally sought for invention patent protection. In contrast therewith or specifically, if the improvement is made with regard to the apparatus or device, it might be necessary to involve in a relatively significant improvement in order to qualify as an invention patent. This is especially true in the past. Nowadays, Taiwanese patent examiners adopt a looser measure to scrutinize the patent applications so that we can now find now and then an average improvement in respect of apparatus or device is patented as an invention patent. People here are thus confused as to whether an invention or a utility model patent should be sought for a specific creation.
The time is changing so that the law is changing. New technology always silently but rapidly supersedes the old one so that the product embodying the old technology can easily be phased out in 5, 3 or even 1 years. What is the value or necessity for a technique developer to seek patented its technique? Since it has been quite possible that before it can definitely obtain a patent certificate, the product embodying its ¡¥new¡¦ technique has been phased out of the market. Under this situation, it is very sarcastic for existence of the patent system, which is devised to promote research and development since creation here apparently has nothing to do with the patent law.
If an applicant leads its life seriously and would like to file a patent application in a country both providing patent and utility model, the problem whether the application should be sought for patent protection or registered as a utility model is always headachy either to it or its patent attorney. This problem raises problems between applicant and patent attorney. If the creation turns out to be a commercially successful product and the patent attorney files the creation as a utility model, the applicant might complain why the patent attorney could not have fully explained for it differences between patent and utility. Similar situation might occur if the creation does involve in an improvement but has been repetitively rejected as being in lack of enough inventive step and is filed by the patent attorney as a patent application. The applicant would complain why the patent attorney did not file the creation as a utility model for convenience. While it is true that the patent attorney has the responsibilities to explain for the applicant what the law is, it is equally true that the law should not so provide that it leaves attributes contributing to potential disputes between people.
In practice, the patent attorney might file an invention as a utility model without substantive examination simply because a formal certificate can be obtained very fast by which the applicant is superficially satisfied. Such utility model registration system is like a law allowing and alluring the patent attorney to cheat itself or its conscience, and providing a sound opportunity for the applicant to be confused and self-cheated. A law needs not be a good law but should not have contents easily causing confusion or providing leaks for cheating, self-cheating or being cheated.
Since the utility model is a kind of patent, the registration thereof is generally governed by the authority managing the patent. Is it strictly necessary for the registration of utility model to be handled by the official Patent Office managing the patent matters? Is it possible that a utility model created by any one needs not be officially registered just like what is happened to copyright? Will the registration of utility model be more efficiently handled by the official Patent Office managing the patent matters? Is the registration of a utility model the best strategy for the protection of the utility model? Is it worthy for a country providing the patent law to retain the utility model registration system?
It appears that the US having its patent law without the utility model provision runs its patent system quite well. Taiwan Nationals sometimes are astonished by the fact that a Taiwan utility model can be granted as a US patent. Does it make sense to be unjust that the law awards the full 20-year exclusive term for an invention of a smaller progressiveness when compare to that for an invention of a larger inventiveness? Does it not represent that if the patent concerned involves in a smaller progressiveness, the patent is easier to be designed around so that it is useless for the patent to obtain a patent term of that length? Does it really require or be necessary for a country to be rich and strong as the US to adopt the utility model system? Before whether the utility model system is necessary and more advantageous than disadvantageous is clarified, it seems that the country having a utility model system allowing registration without substantive examination needs not be so much prepared to revise its patent law adopting formal registration of the utility model.
Some people attribute the necessity of adoption of the utility model to the facts that the examination of a regular or standard patent application is too long and that the provisional protection offered during the prior publication is not so much effective. It appears that these are not qualified factors for excusing the adoption of utility model system or even its formal registration without substantive examination. Why could it have been evolved to the situation that the pending period of a patent application takes so long a time? The law must keep pace with the time, so must the government agency. Is the reduction of the government size excusable for the delay of patent examination? As a matter of fact, the U.K. Patent Office announced in late 1994 that it would try its greatest efforts to issue its first office action within one year from the filing date of any patent application. Japanese Patent Office will also issue its first office action on the merits of any patent application within one year from its filing date. Korean Patent Office has made its decision that from now on, the examination period for all patent applications will be shorter than 36 months, and will be further shortened to be within 24 months this year, and will be tried to be reduced to be shorter than 12 months in the future. Are these facts not indicative of the fact that the reason of longer examination time for the patent application does not necessitate the adoption of the utility model registration system?
Another problem to be discussed is whether patent, utility model and design should be enacted into laws separately or integrally?
Perhaps, the adoption of the utility model system merely happens to be just a historical opportunity. Furthermore, the introduction of registration of the utility model might be also totally accidental and factors above-described have never been thought of and/or deliberately considered in depth. What is the future of the utility model system? How should we treat or deal with the registration of utility model? Does there exist a solution for the utility model and its registration? We summarize briefly possible solving answers to the above-mentioned disadvantages of the utility model system as follows:
1) In order to maintain a justified society for the general public or possible accused infringer, before a utility model registrant can prove that there indeed exists a legitimate patent dispute or that the utility model is in fact valid and effective, the law should not permit the registrant to initiate a law dispute against any accused infringer. Our rationale for this is that before the law permits invasion into the regular life of the national, it must be certain that the invader has some kind of definite right. Since the patent application having a relatively higher degree of creation needs be examined, we cannot find out reasons why a utility model having a relatively lower degree of creation needs not be? Furthermore, since the rate granted patents result in a patent dispute is quite low, i.e. normally lower than 3%, the law can allow expedite examination for these applications. If necessary, the laws can stipulate that after the applicant shows a law suit is instituted, the Patent Office shall complete prosecution of the application in 6 months and/or that only after the plaintiff has proved its utility model is indeed registrable, the court will really proceed its procedures;
2) To the above effects, the laws need not be changed much. The utility model can still be maintained to be registered without substantive examination. Nevertheless, it still is worthy of our discussions as to whether this civilized society needs the utility model system?
3) In addition to the rapid registration, is the utility model necessary for the protection of intellectual property rights? Are there concrete standards for telling apart one creation for a patent from that for a utility model? It might be worthy of our consideration that a utility model is automatically protected without registration once it is created. The creator has the burden to prove its creation. Before the creator can take any active legal measure against any asserted infringer, he must prove before the court that the utility model is registrable;
4) Is it justified to protect creations of different inventivenesses under the same patent rule? If yes, just like what is happened in the US presently, what are reasons for us to provide the utility model? For simplicity and in view of the fact that it is nearly impossible or often in vain to persuasively or convincingly discriminate between different inventivenesses, is it a good idea to abolish the utility model system? If it is unadvised to do so, it might be advisable to define a utility model as in the following: ¡§an application originally filed as one for a patent, rejected as being in lack of an enough inventiveness or non-obviousness and recognized to bear some kind of improved functionality and utility can be petitioned to be granted as a utility model that can enjoy a shorter protection period and be interpreted to have a narrower protective covering scope;¡¨
5) Is the utility model registration system necessitated in view of its involvement in a more complicate technology? This reason, however, is not convincing in that for a copyrightible work, it is easier for the general public to judge whether its copy will involve in an infringement. For a more complicated thing, e.g. whether the subject matter contained in an granted utility model is allowable, a governmental interference to definitely and positively determine rather than formally or procedurally examine in advance for them a specific behavior, e.g. copying the utility model, is legally prohibited is desired and necessary for benefits of the general public;
6) If the utility model or design is to be registered without substantive examination, it might be advisable to consider the introduction of system for copyright. Specifically, the protection is automatic upon completion of creation and can be enforced by the court subject to the preceding proof of a creation of eligible protection. By so doing, the work load of the Patent Office is greatly reduced.
Claims we have
1. If substantive examination of the utility model or design is eventually found unnecessary, a system similar to that for copyright might be suggestible, in order to reduce the work load of the Patent Office, to obviate misunderstanding of relevant parties and to retain harmony of the society.
2. If the utility model is finally found to be beneficial to the human society, a clear and definite separating line between it and the patent shall be carefully defined.
3. If the utility model system is anyway believed to be better kept in force, it might be a clever idea to define the utility model as: ¡§an application originally filed as one for a patent, rejected as being in lack of an enough inventiveness or non-obviousness and recognized to possess some kind of improved functionality and utility can be petitioned to be granted as a utility model that can enjoy a shorter protection period and be accorded to have a narrower protective covering scope¡¨, by which disputes between the applicant and the examiner can be decreased.
4. If the utility model is ultimately found to be viable, its owner shall not be imparted with the right to take legal action against the asserted infringer before it can prove its utility model is legally eligible for protection.
5. If it is somehow found that the registrant of an unexamined utility model to the substance should have the right to take a legal action against an opponent, the court shall not try the case before it is satisfied the concerned utility model is eligible for protection.
6. If the Patent Office has by any chance got known to the fact that a utility model without substantive examination is a basis possibly producing a law dispute, upon petition, it shall complete the examination or prosecution as to whether the utility model is eligible for protection in a relatively short period of time.
7. If it is so hard to differentiate the patent from the utility model, the last resort might be to define the former as one for protecting a creation having absolute novelty and the latter as one for protecting an invention only possessing relative novelty.
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