PROTECTION OF INVENTIONS BY UTILITY MODEL
(20355)
9678/1/99
COM(99) 309
|
Amended draft Directive approximating the legal arrangements for the
protection of inventions by utility model.
|
| Legal base: |
Article 95; co-decision; qualified majority voting
|
| |
| Department: |
Trade and Industry |
| Basis of consideration:
| Minister's letter of 28 March 2000
|
| Previous Committee Report:
| HC 34-xxviii (1998-99), paragraph 4 (20 October 1999)
|
| Discussed in Council:
| Discussed in COREPER on 22 March. It is not expected to
be discussed in Council
|
| Committee's assessment:
| Politically important |
| Committee's decision:
| Cleared on the basis of the Minister's letter
|
The proposed Directive
20.1 The purpose of the proposal is to harmonise
certain aspects of the national laws of Member States on the legal
protection for inventions by "utility models". The utility
model system proposed would be for a registered intellectual property
right (IPR) similar to a patent, but it would differ in that the
degree of inventiveness needed to secure rights would be less
than that for a patent, the duration of the rights would be considerably
shorter and there would be no requirement for search and examination
before registration.
20.2 When we last considered the proposal,
on 20 October 1999[41],
we did not clear it, but asked the Minister to report on the outcome
of the consultation the Government had initiated on it. We also
asked for a more precise statement of the Government's view and
to be kept informed of progress and of any differences of view
on it.
The Minister's letter
20.3 The Parliamentary Under-Secretary of
State for Consumers and Corporate Affairs (Dr Howells) says, in
a letter of 28 March, that the consultation indicates "almost
unanimous opposition" by UK industry to the proposal. Amongst
the concerns of industry were that:
- the existing patents system meets the needs of
businesses, including small and medium-sized enterprises (SMEs)
for a quick, easy and inexpensive system;
- the new system would devalue existing national
and European patent systems;
- the new right does not exist in the US and would
cause Europe to open its market without reciprocity to its main
competitors and risk being flooded with foreign registrations,
putting European industry at a disadvantage;
- although the new system is superficially attractive
to SMEs, the lack of legal certainty inherent in an unscrutinised
right could give rise to expensive litigation which SMEs might
be unable to afford; and
- the system would be used by large companies to
protect their areas of interest so as to stifle competition and
to bar access to the markets for SMEs and others. The proposed
Directive would be anti-competitive and would damage the interests
of SMEs and consumers, as well as those of large companies.
20.4 The proposal is welcomed only by the
toy industry, according to the Minister. However, he adds, that
industry appears to be arguing, in effect, for the introduction
of unfair competition legislation in the UK, rather than for the
removal of any deficiencies in its IPR régime.
The Government's view
20.5 The Government shares the concerns
of UK industry, the Minister says. It has not been convinced of
the need to introduce a utility model system. The system proposed:
"... would be exploited
by large corporations seeking to reduce competition by creating
rafts of rights against the interests of SMEs, who are likely
to be better served by obtaining full patents."
20.6 He further comments:
"A major reform exercise
is currently under way in the European Patent Organisation and
negotiations on a Community Patent Regulation are expected to
start shortly. We fully support these efforts and believe they
should be completed before other ways of protecting technical
innovation are considered."
Discussions in the Council Working Group
20.7 The Minister reports that fundamental
differences between the Member States prevented agreement both
on the desirability of a harmonised utility model system and on
its essential characteristics, such as the level of invention.
The UK, Sweden and Luxembourg saw no need to introduce either
the system proposed, or the 'petty patent' system in use in France,
Belgium and the Netherlands, who do not want to replace that.
The other Member States have utility model systems which differ
from one another but are broadly similar to that proposed by the
Commission. In Germany, the balance of a system that has been
refined by the courts over the last century to meet the needs
of industry would be upset by the changes that the proposed Directive
would require.
20.8 After more than two years of discussion,
no consensus has emerged. When the Presidency referred the matter
to COREPER on 22 March, the UK answered in the negative the first
question put:
"— is there
any political will to continue work on this proposal?"
20.9 There was sufficient support for a
decision to be taken to suspend work on the Directive.
Conclusion
20.10 If and when this proposal is resurrected,
we can expect that a new text will be submitted. In these circumstances,
we thank the Minister for his meticulous response to our request
to be kept informed and clear the document.
41 (20355) 9678/1/99; see HC 34-xxviii (1998-99), paragraph
4 (20 October 1999). Back
|
