Should China Keep the Present Utility Model System? A Look at the Experiences of Germany, Japan, and the United States and the Prospect in China

Abstract

Utility Model system, as a typical second tier patent system, is the tool for protecting less creative innovations in many countries. China has established this system since the year 1984. If only from the perspective of number of applications, utility model system is successful in China. However, its practical significance should be analyzed. This article attempts to provide such an analysis. This article first considers the treaty obligations of China, and concludes that they do not require China to adopt utility model protection. Next, it investigates the utility model system in Germany and Japan, and also the protection of less creative innovations in the United States. It contends that second tier system is needed even in a highly industrialized society, and if criteria are properly set, this system could be attractive. Based on this, it then analyzes the inventiveness criteria under German, Japanese and Chinese law, and their applications in practice. The article then turns to discuss the present utility model protection in China. It argues that, although utility models are very popular in China, their merits on enforcing rights are not significant. For a better protection of less creative domestic industry in China, the utility model system should be revised: protectable subject matter needs to be extended and the scope of prior art needs to be restricted.