The utility model is a legal institution the origins of which go back to 1891 in Germany. It was created to fill a gap in the law. The German patent office only granted patents for inventions that were new and displayed a certain level of inventiveness. But there were a great number of technical solutions consisting of industrial creations with little technical or constructive complexity. They were characterised by the fact that they generally included a formal modification of objects in common use and simple tools, where, despite the simplicity of the innovation, there was nonetheless a technical advance on what was previously known. These "small inventions" were not patentable, but the German legislature believed that they did not deserve to remain unprotected seeing as they had an undeniable economic value. That is why the legislature deemed it necessary to create a specific exclusive right, different from the patent and suitable for protecting these minor inventions.

The utility model was soon adopted by other countries, including Japan, Poland, Spain, Italy, and Portugal. Not only has the utility model survived in all those countries, but more recently, it has also been introduced in other states such as Greece (1987), Finland (1991), Denmark (1992) and Austria (1994).

Broadly speaking, and excluding some particularities of different States' laws, the utility model protects technical inventions (process inventions are excluded from the protection of the utility model) that fulfil the requirements of novelty and industrial application - some degree of "inventive step" is also required, but it is much lower than for patents.

The novelty requirement is the same as for patent law, that is to say, the invention is novel if it is not included in the worldwide state of the art when the application is submitted. There are some exceptions, such as in the case of Spain, where only national novelty is required and Germany, where only written disclosures made in any part of the world and the use of the invention within German territory may affect the novelty of a utility model.

The requirement of an inventive step is defined differently from the requirement of an inventive step for a patentable invention. In most legislation on utility models, a lower level of inventive activity is required. Although it is very difficult to assess the level of inventiveness that qualifies, there have been attempts to express, in legal terms, the lower rigour of this requirement with expressions such as "the invention should not derive from the state of the art in a very obvious way for an expert in the field" (instead of the expression "it should not be deduced in an obvious way..." used in patent law

Sometimes the requirement of inventiveness (the "inventive step") does not apply. For instance, Polish law requires that the model itself be useful, meaning that a practical aim is achieved through the solution in the production and use of the products.

Finally, in some countries, for example Germany and Austria, there is a grace period. That is to say, the printed publication or use of the invention by the applicant (or by someone acting on the applicant's behalf) does not affect novelty as long as it has taken place within a period of six months prior to the date of filing the application for the utility model.

Usually, the procedure for obtaining this form of protection is a simple registration procedure. That is to say, the patent office only examines the fulfilment of the formal requirements for application. Once this formal examination has been completed, the body will proceed to grant the utility model. In this way, the time during which the applicant has provisional protection is considerably shortened. As a general rule, six months after an application is filed, a utility model can be obtained, which means full exclusive rights to the invention are granted.

In Spain, for example, after the formal examination of the application, there is an opposition stage: a third party with a legitimate interest may oppose the registration of the utility model by claiming that the invention lacks one of the requirements for protection established by law.

In Germany, Austria, Finland and Denmark, the applicant may ask the relevant patent office to write a "report on the state of the art". From this report, it can be determined whether the invention is novel and whether it involves an inventive step. But the report is not legally binding, and the office must grant utility model registration no matter what the result of the report may be.

In Portugal, the new Industrial Property Code, approved in March 2003, introduced a patent and utility model granting process that includes the examination of the protection requirements, even though, as regards utility models, it is, in principal, a voluntary process. If the utility model applicant does not request a prior examination, the Patent Office, once it has examined the formal requirements of the application, will register the utility model. This will be considered a "provisional utility model". This provisional title will be made "definitive" once the applicant, at any moment of the registration procedure, or any third party, once the provisional utility model has been registered, requests that the patent office carry out a prior examination. The corresponding examination fees should also be paid. In addition, if the holder of a provisional utility model intends to enforce its right against a third party, it will have to request that the Office carry out a prior examination.

Poland is an exception to this general rule: formal examination of the application is followed by an examination of the legal conditions for protection.

In almost all national utility model systems, certain mechanisms connect the utility model to the patent. These mechanisms exist to prevent mistakes on the part of the inventor in applying for adequate protection: there will often be a way to transform a patent application into a utility model application and vice versa. In other cases, these mechanisms prevent the invention from being deprived of protection when the inventor does not have a clear idea of the invention's level of inventiveness. Thus, inventors are allowed to simultaneously apply for a patent and a utility model for the same invention, the registration of the utility being granted only if the patent application fails for want of an inventive step. Finally, in other cases, there is an attempt to offer the inventor full protection for the invention by granting a utility model registration while the patent application is pending (which, as we have said, usually takes a couple of years). This is the case of the so-called internal priority or derivation.

Again, Poland is an exception. The change of application is only one-directional, that is to say that during the examination stage or for a period of two months from the refusal to grant a patent, the applicant may apply for a utility model protection right. It is not possible, however, to convert a utility model application into an invention application.

The duration of the exclusive right granted for a utility model is, as a general rule, ten years (except in Greece, where the duration is seven years.)