A utility model protects particularly such technical solutions, the inventoris level of which does not comply with strict preconditions for granting the patent, but their technical level exceeds the scope of the mere professional skill, and also if there is an interest to obtain a quicker and cheaper protection, or if the technical solution was made public in advance (of course under certain conditions), and it is not possible to protect it by means of the patent. On the contrary, the protection by means of the utility model is not very suitable in cases, if it concerns a technical solution requiring a previous long-term and expenses research and development and verification (e.g. medical products).
The utility model protects the technical solution, which is new, which crosses the scope of a mere professional skill and is utilizable in an industrial way (criteria similar to legal preconditions of patentability of inventions).
As technical solutions cannot be mentioned:
By utility models there cannot be protected technologies, because for their protection only patents can be used. Applications of new varieties of plants and new breeds of animals cannot be also filed for registering into the Register of Utility Models (they can be protected only within the scope of decrees of the Ministry of Health, eventually Ministry of Agriculture - the same as to inventions). Bilological production microorganisms cannot be also protected by means of a utility model.
The novelty of a utility model is judged in the same way as the novelty of an invention. All knowledge made public anywhere in the world before the priority date may be objected against the novelty of the utility model, but all works of the originator made public within the last six months before the filing date of the application of the utility model represent the exception, and they cannot be used as the objecting material.
The right to the utility model has the originator, i.e. that person who made it by means of his own creative work, or his legal successor.
For the entry into the Register of Utility Models, it must be applied by means of an application of the utility model, filed in writing at the Office, and the application may include only one technical solution or a group of solutions which are mutually in such a relation that they realize only one technical idea. If the application complies with the formal requisites laid down by the law, the Office shall register the utility model into the Register.
Effects of the utility model are identical with those ones of the patent.
For small and middle entrepreneurs, it is important that they can obtain a protection by means of the utility model application. The registration of the utility model is made in a considerably shorter time than there is the time for granting the patent - usually the whole proceedings isrealized within 3 to 6 months. In this way they acquire quicker and cheaper the exclusive protection for a certain product, with the full ownership and the right to dispose freely with this intellectual property. It means that they may provide licences to third persons for them to be able also to produce the protected product, to transfer said right, eventually to sale it, and they may also take action against interferences in their rights, made by third persons and exact, in a legal way, indemnity and lost profits due to a breach of rights of the registered utility model.
As to the utility model there is performed only a formal examination. The judging of the novelty and of the fact whether the solution crosses the level of the mere professional skill and whether it is utilizable in the industrial way, comes in question only in case that the erasure proceedings takes place. The proving material to the application for an erasure must be provided with own searches by the counterparty.
The protection of a technical solution by means of the utility model is advantageous for the registrant not only due to the quickness of the registration and relative easiness of its achieving, but also because of the fact that expenses for the application and renewals of the protection are not so high. In the contrary, the disadvantage is represented by the shorter protection period, i.e. 4 years (from the filing date) with a possibility of two prolongations by three years, i.e. for the maximum protective period of lO years. Another disadvantage resides in a lower safety of protection, because the utility model is entered into the Register without the complete examination. A higher safety of protection may be ensured by the registrant so that he/it performs his/its own preliminary examination of the novelty.
The protection by means of the utility model is convenient in case that the utility model is in fact prepared for production and that there does not exist a too high risk of an eventual dispute. Also in case that the subject of the protection was made public by the registrant in advance, if the application has been filed within 6 months from said making public. In such a case the protection by means of a patent is impossible, but the utility model shall be registered. In some cases a parallel protection, both by means of the patent and utility model, is advantageous and tactical.
A provision concerning the forced licence exists for the utility model in the same extent as for the invention. The Office shall grant the forced licence only in the case that the owner of the utility model does not utilizes its subject, or that he/it utilizes it insufficiently and cannot document his/its inactivity with serious reasons. The right of the owner of the utility model to licence fees, of course, is not affected by granting the forced licence.
The provisions of the Patent Act shall be applied for rights to the utility model, co-ownersi relations, entry of licence contracts, transfers of utility models, relations to foreign countries, and the like.
Due to the institute of turning, as to utility models, and postponed examination of patent applications, the applicants and registrants have at disposal many variations, by which they can react quickly to changes of initial conditions.
Sources of law
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