THE UTILITY MODEL
The law of utility models no. 350/2007 refers to simple technical solutions that, however, exceed the level of simple professional skills. They must be, as in the case of inventions, new and susceptible to industrial application. In the specialized literature, they are also called Petit Patent, respectively Gebrauchmuster and have been promoted for over 100 years.
Almost all countries in Europe (except the UK, Luxembourg, Sweden) have this form of industrial property protection. The utility model is actually an invention, but of less complexity, therefore the term invention will be used in the following. The registered utility model grants the holder an exclusive right to exploit the solution; the holder has the right to prohibit the manufacturing, use, offer for sale, sale or import in order to use the respective solution. The owner may also prohibit third parties from providing means of applying the invention on the territory of Romania when the third party knows or should have known that the means are adequate for the exploitation of the invention.
The duration of the utility model is 6 years with the possibility of two extensions of 2 years each; therefore maximum 10 years.
In the field of constructions and architecture, suitable for protection by utility model are the constructive solutions realized by the architect if they are based on the study of the structure of the construction and the elements with structural role. If by design only the form is protected and by the invention only the technical solution, the utility model can protect the form determined by the structure, respectively by the static conditions of the constructions and by the resistance of the materials. Thus, a building facade whose resistance skeleton or part of it is visible, with beams in K or semi K, and in which the highlighting of some structural elements is promoted as they have an architectural role, suggesting for example safety to the consumer, can be protected very well through utility model. The project of villa with visible flexible elements, with a certain arrangement of the respective cables can be a utility model. The buttresses, reinforced consoles, vaults and other systems for increasing the strength of the construction or its realization with material savings, if visible, can be the object of utility models.
The law states that, as in the case of inventions, discoveries, theories, aesthetic creations, game schemes, economic schemes, computer programs are not the object of this kind of protection. The above can be protected only in combination with concrete solutions; only not by themselves.
Also, biological, chemical, pharmaceutical, plant varieties and animal breeds cannot be protected. It should be noted that procedures or methods cannot be protected. For such cases, the protection of the elements that compete in the realization of the process can be requested; another way is to apply for a patent.
Solutions that are contrary to public order or that affect the environment, understanding by this the humans and animals, cannot be protected.
The conditions that are required for a technical solution to be a utility model are novelty, exceeding the mere professional skills and the possibility of industrial application.
The novelty is considered fulfilled if the state of the art, respectively the knowledge made accessible to the public, does not include the respective solution.
If the disclosure comes from the inventor no later than 6 months before the filing date, it is not taken into consideration. Exceeding mere professional skills means a contribution to the current practice of the profession.
If the operator will execute the works according to a precise protocol, with the phases and the equipment established concretely, it is assumed that he will not exceed the simple professional skill.
When there are technical implications, protection as an utility model can be attempted. Any innovation in the development of a work, by creating aid devices, facilitating the work process, increasing the security, realizing some savings, can be the subject of an application for protection as an utility model. In the field of constructions, devices for fastening or fixing loads to lifting machines, formwork solutions, foundation solutions, finishing solutions, etc. can be utility models.
The utility model application is examined only from the point of view of the form conditions; thorough examination of the conditions of novelty, overcoming the simple professional skills and industrial applicability are not done by the industrial property offices.
The applicant, if the conditions for filing, such as terms and payment of taxes are met, will obtain the registration certificate of the utility model. During the examination of the application, a documentation report is drawn up and on the basis of it the applicant decides whether he exercises his exclusive rights established by law. The documentation report is prepared by OSIM within 6 months from the filing date.
The possible disputes regarding the non-fulfillment of the substantive conditions are solved in court.
It is mentioned that a patent application can be transformed into a utility model application and a utility model application can be transformed into a patent application. The procedures must be requested prior to the completion of the initial application. For the same technical solution, protection cannot be obtained through both laws, the patents law and utility models law.
The utility model application ensures accelerated protection compared to the patent and costs less. After the application, within 6 months the documentation report is drawn up, then in two months the applicant has to pay the publication, certificate issuance and maintenance fee for the first 6 years of protection.
The application is accompanied by a description, drawings, claims and summary.
The utility model application must relate to a single invention. If not split at OSIM’s request or on its own initiative, OSIM declares the application to be withdrawn. It is a harsh condition, avoided in the procedure regarding patents.
The OSIM judgments can be appealed by the applicant to the Reexamination Commission within the Appeals Department within two months from the communication. This decision can be appealed by filing an appeal to the Bucharest Court.
The holder of the utility model may mark products or packaging, or may use on the header, signs that are likely to create the impression that the products are protected as utility models; in such cases, at the request of any interested person, he must provide information regarding the model on which the sign is based.
This possibility gives the holder a new means of distinguishing himself in the market with his products or services; the distinctiveness is currently ensured by the brand of products and / or services. The holder may add a distinctive sign next to the mark resulting from the documentation of protecting the utility model. Finding the utility model that fulfills the functions of the brand in constructions requires a great technical and architectural ability and a deep knowledge of the industrial property.
The official fees for the model applications are 30 euros for submission, with payment in two months, 90 euros for the documentation report, in two months from the deposit, 400 euros for publication, issuance of the certificate and keeping in force for the first 6 years, payable in two months from the submission of the documentation report.
If the shape is determined by material strength considerations it means that it is determined by the technical function and protection is recommended as a utility model. However, if the shape cannot be claimed as technically determined, it can be protected as an industrial design.
If the shape is determined by material strength considerations it means that it is determined by the technical function, and protection is recommended as a utility model. However, if the shape cannot be claimed as technically determined, it can be protected as an industrial design.
Advantages of protecting the solutions through the provisions of Law no. 350/2007 regarding the protection of utility models
The registration certificate for the utility model is obtained more easily than the patent.
The duration of the proceedings is shorter, maximum one year (for patents 4-5 years).
The costs are lower.
Preventing counterfeiting until patent protection is obtained, when appropriate.
Applying a sign from the utility model documentation on products or packaging can provide distinctiveness for the respective products or services.
It is suitable to protect the solutions for constructions and architecture when the visible presentation of the structural elements is achieved for consumers.
Product life cycles tend to shorten, so patent protection typically does not exceed 10-12 years (except for the chemical, food and petroleum industries); while the utility model can cover 10 years.
The utility model application can be transformed into a patent application.
Protection in stages, respectively 6 years + 2 years + 2 years, corresponding to the commercial interests of the holder
It complements patent protection for constructive variants that have a lower level of inventive activity but are useful in the market.
Disadvantages of protecting solutions through the provisions of Law no 350/2007 on the protection of utility models
The duration of protection is shorter (10 years) than in copyright and patents.
The legal uncertainty regarding the exclusive right. There is a danger of appealing in court the model certificate by the interested parties if the applicant did not take due account of the documentation report.
Time is an impediment. The solution must be new, so after the construction is completed, the application for protection is usually late. When emanating from the author, protection must be requested within 6 months.