The utility model is very similar to the patent and is frequently viewed as the “petty patent”. Features common to both the utility model and the patent are, for example:
- In each case, technical objects such as e.g. machines, equipment, circuits, devices and their components, along with chemical products e.g. plastic granules, artificial fertilizers or pharmaceuticals can be protected; utility model protection is not available for processes.
- The scope of protection, in the form of the exclusive right of use of the protected invention, and the right of prohibition vis-à-vis third parties, is comparable.
- The structure and content of applications are comparable, likewise the work involved in drawing up the application documents and submitting them.
Differences between the utility model and the patent are, for example:
- The utility model has a life of 10 years from the date of application compared with 20 years from the date of application with a patent.
- The protection afforded by the utility model takes effect with its registration, generally approximately four months after the date of application; protection from a patent, however, does not take effect until it has been granted, in general from approximately one and a half years from the date of application, if the request for examination has been made.
- Processes are excluded from utility model protection; however they can be protected by a patent together with the products manufactured directly with them.
- The utility model is an unexamined property right, i.e. it is registered without a content-related examination of the protectability. For this reason, in place of research by official institutions, it makes sense to conduct one’s own research into relevant existing property rights. As the case may be, examination of the protectability may not occur until later, in the context of cancellation proceedings, e.g. claim of an infringement of property rights.
- Owing to the lack of examination of protectability, registration occurs quickly, generally after approximately four months from the date of application – from the point of registration action may be taken against third parties on the basis of the utility model.
- If a technical invention has already been made public, then for up to six months afterwards a utility model can be obtained for it (period of grace); however, granting a patent for this invention is no longer possible.
Depending on the situation, an application for either a patent or a utility model may make sense – however, it is also possible to pursue both applications (with what is essentially only a one-off effort in terms of drawing up the application itself) in parallel, at least for a while, in order to obtain protection quickly through registration as a utility model and nevertheless, long term, to be able to assert one’s own interests by means of a granted patent as an examined property right with greater legal security.