In our November1995 Newsletter (N.S. 186) we noted the issuance by the European Commission of a Green Paper on the subject of Utility Model Protection as a means for protecting inventions that did not qualify for full patent protection (for example, because they did not meet the necessary standards of inventive height). Having considered the comments of interested parties on the Green Paper, the Commission has now issued a draft directive for harmonization of the laws of the EU member states on this topic. This will require, for example, that the United Kingdom introduce this type of protection for the first time.

In introducing the proposed legislation, the Commission reports that it has concluded that utility models are a useful form of protection because of their low cost and ability to protect inventions of lesser importance. Some industries, however, particularly the chemical industry, are concerned about the impact of such protection since the low cost is the result of little or no examination and there is a fear of a plethora of unexamined rights which might inhibit research and development in some areas. The Commission's response to these concerns has been to exclude not only those types of inventions for which patent protection is excluded under the European Patent Convention from protection by way of utility models but also inventions relating to biological materials, chemical and pharmaceutical substances and processes and inventions involving computer programs.

Novelty for utility model protection will be judged on an absolute world-wide basis without any general grace period. There will be no substantive examination, although applicants will have the right to request a search if they wish and Member States will have the right to compel a search before commencing court proceedings. To qualify for protection an innovation must not only be new but must also exhibit particular effectiveness in terms, for example, of ease of application or use or a practical or industrial advantage.

The maximum term of protection will be 10 years.