is not high, with the result that protection is given to the kind of novel articles the Gebrauchmuster (ie petty patents) system protects. It was clear that this view would change if the standard of inventiveness were to rise to an extent which excluded utility models."
11.31.
Subsequently, the Banks Committee Report (Cmnd 4408, 1970) found against petty patents on various grounds. The Committee considered that petty patents would not necessarily diminish the work load of the Patent Office, and that "any system for granting monopolies, albeit for a short period, without search and examination is open to the same objections as a registration patent system". The term "registration" here and in the next two paragraphs means a deposit or non-examination system which requires no search or examination before grant.
11.32.
A Consultative Document -"Intellectual Property Rights and Innovation" released by the United Kingdom Government in 1983 (Cmnd 8302) recommended that a "registered invention scheme" be introduced. The consultative document purported to refute the findings of the Banks Committee. It was also observed in the consultative document that since the 1977 Act the standard of inventiveness had increased, and the point made by the Johnson Report (see above) was referred to in this regard. In considering this point, it has to be noted that the level of inventiveness for the purposes of the test of obviousness applied by the courts in patent litigation remains the same. Under the Patents Act 1949, an applicant for a patent was given the benefit of any doubt at the application stage and was thus permitted to seek to prove his patent valid at the infringement stage. Under the Patents Act 1977, the notion of giving an applicant for a patent the benefit of any doubt has gone but when it comes to litigation there is and has been only one test for validity namely "Was it obvious or not?". In practical terms it is considered that there was no change for the purposes of enforcing a patent.
11.33.
The United Kingdom still does not have a petty patent system. In its 1986 Report entitled "Intellectual Property and Innovation" (Cmnd 9712), which led to the CDPA in 1988, the Department of Trade and Industry argued that rights granted by registration would be uncertain and that the methods which had been suggested for limiting the uncertainty would reduce the value of registration. The Department also argued that a registration system could not reduce the cost to users, and stated that :
"Finally, it should be noted that the United Kingdom is one of the few countries to give protection against copying of functional articles through its copyright law and the Government is proposing that protection should continue, albeit in a modified form. Thus, in many cases, protection which is only available abroad under a second tier patent system is already, and will continue to be, available in the United Kingdom without the need for registration or the payment of fees of any kind."
11.34.
We note that the report does not say that in all cases protection which is only available abroad under a petty patent system is already available in the United Kingdom. As we have found above, there is a need for petty patent protection where the underlying idea can be taken without copying the form of the article. The need is especially evident for short-term products where full patent protection is not a viable option.
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