실용신안제도의 실효성에 관한 검토

Is Utility Model Still Necessary?

The utility model is designed to protect inventions that do not rise to the level of the normal standards of patentable invention. While some novelty is required, the degree of inventive advance can be more modest than that required for a full patent. The utility model law requires that the subject matter be an article having a definite shape, structure, or any combination of both. Any process invention cannot be protected under the utility model law. The duration of protection for a utility model is 10 years from the date of filing, which is shorter than for a patent. Early utility model law required the substantive examination of novelty, inventive step and industrial applicability prior to the registration. In 1999 the utility model law was revised to grant a utility model right without substantive examinations except a basic requirement check of an application. However, there were some complexities and uncertainties arising from the technical report of a registered utility model right. The technical report, prepared by an examiner on the basis of prior art documents, is required in the execution of a utility model right against potential infringements. Therefore, the utility model law was revised again to restore the substantive examination system in 2006. Meanwhile, utility model applications are steadily decreased while patent filings are increased. Fast and low-cost protection are no longer strengths of utility models against patents. On the other hand, there are some developments in the harmonization of patent laws, and collaborations between many countries for a speedy process of the registration, such as the Patent Prosecution Highway system, enhances the easy access to patents. The paper suggests to reassess the effectiveness of the utility model.