By Abhishek Kumar, Ranchi
Introduction
The working of the flour mill with the help of the scooter in the movie ‘3 Idiots’ is a classic example of the working of jugaad in the Indian society.
The MSME sector which contributes around 45% of the manufacturing output and 40% of the total export of the country is dependent on these minor jugaad type innovations. However, this sector contributes meager output when it comes to the IP assets of the country reason being the stringent legal framework of the country.
The essential patentability criteria of novelty, non-obviousness and industrial utility may not be able to benefit the grassroots innovation based on the incremental invention of the land. However, many countries of the world including Australia, China, South Korea, Brazil had laid provisions for the protection of such innovation which might not be new (not an invention) to the sector but having an incremental value by introducing the concept of utility model or any other form.
In order to promote the manufacturing sector, there is a need to surpass the stringent patentability criteria and the introduction of Utility Models. The National IPR Policy draft advocates for such need of the time.
The article will deal with the meaning of the utility model by differentiating with the patent and further the pros and cons of such model for the country like India.
Defining Utility Model
Utility model, similar to a patent, grants an exclusive right to the right holder for his innovation for a limited period. The protection under this model is known differently like petty patents, utility innovations, innovation patent etc. Presently, more than 25 countries provide protection under the utility model.
The most basic difference between the utility model and the patent is eligibility criteria required for acquiring a utility model is less stringent than a patent (inventive step is not required). Any innovation of incremental character may be given a protection under the utility model however, it doesn’t meet the criteria of the patent. Further, the time period of protection for a utility model is quite less as compared to a patent.
One of the advantages of utility model as compared to the patent is that since novelty and inventive step are not examined therefore, they can be acquired quite cheaply and in less time as compared to the patent.
Need of Utility Model in India
In the words of renowned Prof. Shamnad Basheer, “the Indian legal regime that is meant to engender innovation continues to mainly favour only ‘formal’ innovations emanating from the rich. This is despite the fact that almost 90% of India’s economy qualifies as ‘informal’! For one, the existing patent registration process is beset with considerable uncertainties and costs (including steep attorney fees), making it well-nigh impossible for a number of our informal creative minds to participate in India’s IP regime”.
Under the current patent law the informal sector which contributes around 90% of the economy doesn’t qualify for the protection. Furthermore, the process of granting a patent is quite cumbersome with a lot of uncertainties and high fees. Utility model can act as a god figure for country like India.
According to Economic Survey 2014-15, India has emerged as the world’s fourth largest hub for start-up with over 3100 of them. So, utility model can be a pole star for such start-ups in the country. They need not to follow the stringent patentability criteria under the Patents Act which is a bane for such start-ups. So, utility model will make a start-up friendly environment in the country.
The bamboo splint making machine developed by two persons from Mizoram has revolutionized the traditional bamboo industry in North-Eastern States. Similarly, other grass-root innovations have a lot of potential to change the lives of a lot of people, however, under the present legal regime no protection can be granted to such grass-root innovations. Utility model can be a boon to such innovations.
The protection under the patent law in pharmaceutical industry is based on two approaches, firstly, radical pharmaceutical innovation which basically deals with discovery of any molecule/drug, secondly, incremental innovation which is based on the principle of modification and improvement in the existing drugs.
The patentability of drugs which is based on discovery is not in question; however, the patentability of drugs based on improvements, i.e., incremental advancement is always in question. Incremental advancement can be substantiated through a number of ways, by way of producing evidence of improved quality, less-side effects, increased effectiveness etc.
But getting a patent on the basis of incremental advancement is a cumbersome process and thereby the importance of Utility model comes in picture. The Technical Expert Committee led by Mr. R.A. Mashelkar observed that the process of innovation is a continuous and progressive process and the incremental advancement based on the existing products and knowledge is a norm rather than an exception.
However, under the present legal regime of the country, protection to incremental improvement of drugs is difficult to get, therefore, introduction of Utility model is very significant for the pharmaceutical industry for the incremental innovations.
Criticism of Utility Model
Apart from all the advantages, the utility model also possesses a number of problems as to the lack of formal examination, inventiveness standard and many more which may lead to extensive litigation.
With the introduction of utility model, it would be very easy to get protection for a short period of time for incremental innovations. However, while granting a patent, the inventiveness condition excludes incremental innovations but the same differs with the case of utility model. No formal examination is done as there is not any standard framework to examine the innovations.
Granting of utility model will give right to the applicant for the protection of their utility model and thereby they will sue those who are infringing their model. Therefore, giving of such an easily available right to the applicant without a formal examination under the utility model will give rise to tons of litigation.
Also, the jugaad type innovations are improved at a very high pace, so if monopoly will be given to such incremental innovation, it will restrict the spread of such innovations.
Mr. Zakir Thomas (Former Registrar of Copyrights) has criticized the utility model through his article published in the Deccan Herald titled “Entry of Worthless Patent under the proposed IPR regime?”. Mr. Thomas argues that the TRIPS permitted the country to decide the inventiveness standard of the invention for the grant of a patent.
The Indian patent law advocates for high standard of innovation in certain sectors like pharmaceuticals and atomic energy. But, the introduction of utility model will give a backdoor entry for the incremental innovation to get the protection. Therefore, giving protection to the utility model will be in violation of the TRIPS agreement.
However, the words of Mr. Thomas itself is critical as the TRIPS has permitted for setting up the standards of inventiveness, but never disallowed the country from changing those standards. Utility model which is having a low standard of inventiveness is not violating the TRIPS agreement.
Furthermore, the utility model was introduced a decade before the TRIPS was concluded, however, the TRIPS agreement doesn’t include such models, thereby denying the protection. The global arena is also not uniform as to the standard of inventiveness under such model. More than 25 countries including Australia recognize the UMs but the major patenting countries like UK and US don’t recognize protection to such models.
Conclusion
The utility of jugaad type innovations can’t be denied and the protection too. The lacuna in the legal framework can’t be a basis for the denial of IPR to such incremental innovations. So, India needs a legal framework for the protection of such grassroot innovations which will bridge the gap between the patentable and non-patentable innovations.
However, the new framework should be judiciously designed otherwise it may lead to expensive litigations. Further, the utility model should not be restricted only to the mechanical devices as there is a need of such model to other sectors too including the pharmaceuticals.