Cancellation of Utility
Model
©2005 Jaroslav Potuznik
[email protected]
UM is registered without any substantive examination. It is why very often as an
adverse action following an attempt to enforce the right given by the UM the
objections are arisen by the third party. Survival of the cancellation procedure
makes the UM valuable legal document.
1
The Legal Framework
“Substantive
requirements
“Procedure provisions
Cancellation is not a kind of substantive examination. The burden of proof is put
on the party.
2
Contradictory Proceeding
“ The
third party arises objections
and brings evidence
“ The owner defends his utility
model
“ The
office assesses novelty and „nonobviousness“
“and
decides
Cancellation is a procedure between two parties, but not a kind of „bilateral“
arbitration. The office is, who judge if in view of the evidence brought by the
third party, the UM meets the substantive requirements which are conditions of
protection.
3
Decision
“ The
UM is cancelled
“ The UM is cancelled partially
“ The request is refused
The reasons for cancellation are only substantive! No formal defects, even lack of
clarity of the claims, constitute a reason for cancellation.
With partial cancellation, new claims are to be set down. The office must very
carefully formulate new claims and not always may follow the proposals of the
owner.
4
Reasoning of the decision
“Base
of the decision
“Grounds of the decision
“Uninterrupted chain of
considerations
“Clarity of the text
The reasoning is to be written so that the future reader, appeal board member or
judge, easy understands the text without studying all contents of the file.
5
Message
“ Fair
and clear communications with
both parties, correct assessing of all
relevant evidence and arguments and
early establishing of the well based
decision are the most important points
making the utility model to be useful
and respected protection document.
Effective cancellation procedure is an inevitable part of the Utility Model
protection system.
6