Utility Models as A Second –Tier Patent System : Is It Worth Implementing in India?

In the context of India where almost 81% of the economy is informal, the existing patent regime is full of costs and uncertainties. Utility models may serve to remedy the shortcomings of the patent system provided that they are enforced within a legal structure conducive to innovation (i.e.) complemented with certain restrictions envisaged in the relevant IP legislation and conditioned by effective enforcement of antitrust laws. Arguments are hence galore that the country needs an effective legal protection system to bridge the gap between invention and innovation. Coexistence of the utility patent system may help in identifying the limitations of the patent system and offer to find a solution for them. Utility patents are affordable, simpler and faster and will if it comes through be used to the fullest extent by Indians who are always better at finding solutions to ease our work by making minor modifications to existing machines (like the engine operated sugarcane juice cart)- inventions which fall short of patentability, but that make life convenient. If laws on protection of Utility Protection Rights are legislated in India, our country will also progress in the ranking of the international IPR index and the Global Innovation Index which in turn will enhance the economic development of the nation as utility models are conducive to innovation and growth. This is all the more true in the context of the country’s MSME (Micro, Small and Medium Enterprises) sector. SMEs account for more of breakthrough and incremental innovation than MNCs, but are hesitant to file patents as it has complex procedures and is costly. Hence utility patents are the solutions for them. Add to these the fact that there are close to 51million MSME units in the country and the picture is complete. The utility patent system will definitely help them in sectors as diverse as electronics and electrical, computers and robotics etc. and will invigorate the “Make in India” initiative of the Government of India. However, before implanting the said model to the Indian IPR landscape, the following questions need to be answered:-a) Should we leave sub-patentable inventions((ie) inventions which show little or no inventiveness) unprotected?b) Should we lower the inventive step threshold under the standard patent law so that more inventions become patentable?c) Should we seek to create alternative legal means of protection such as a tort or misappropriation law or a hybrid property right system such as design rights?d) Is the adoption tailored to respond to the country’s industrial structure?e) Should we go in for an accretion approach or an emulation approach?