NationMaster - Encyclopedia: Japanese patent law

Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act (特許法 Tokkyohō) of Japan which consists of 204 articles. Article 2 defines an invention as "the highly advanced creation of technical ideas by which a law of nature is utilized". Other important Articles include Article 196 which states patent infringement is a crime and Article 2, paragraph 3, which, from 2002 states that a computer program is a product and therefore that patents can be granted for computer programs (in contrast to many other patent systems). A patent is a set of exclusive rights granted by a state to a patentee for a fixed period of time in exchange for a disclosure of an invention. ... The history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474. ... Patents are legal instruments intended for controlling technology-driven socio-economic progress and providing a general benefit for the society as a whole. ... Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. ... The examples and perspective in this article or section may not represent a worldwide view. ... To license or grant license is to give permission. ... European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. ... The United States patent law is a first-to-invent patent legal framework in contrast to all other national patent laws. ... This is a list of legal concepts relating to patents, including special types of patents and patent applications. ... First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. ... An invention is an object, process, or technique which displays an element of novelty. ... This article or section is in need of attention from an expert on the subject. ... The examples and perspective in this article or section may not represent a worldwide view. ... For album titles with the same name, see 2002 (album). ... A computer program is a collection of instructions that describe a task, or set of tasks, to be carried out by a computer. ...

English translation

The definitive version of Japanese law is the text in the Japanese language. An official English-language translation of the law does not exist, but the Japanese government have recently started discussing the possibility of providing one. ^[1] Japanese law was historically heavily influenced by Chinese law and developed independently during the Edo period through texts such as Kujikata Osadamegaki, but has been largely based on the civil law of Germany since the late 19th century. ... Japanese ) is a language spoken by over 130 million people, in Japan and Japanese emigrant communities around the world. ...

An English version of the Japanese Patent Act is published by the World Intellectual Property Organization. ^[2] Also, a reference translation of the Patent Act was once prepared Japanese Patent Office and archived in the Internet Archive, ^[3] but it is no longer up-to-date. Headquarters in Geneva The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. ... Japan Patent Office (JPO) is a Japanese governmental agency that takes charge of industrial property right affairs, under the Ministry of Economy, Trade and Industry. ... The logo of Internet Archive The Internet Archive (IA) is a non-profit organization dedicated to maintaining an on-line library and archive of Web and multimedia resources. ...

Definition of invention

Article 2, paragraph 1, of the Patent Act of Japan defines invention as "the highly advanced creation of technical ideas by which a law of nature is utilized". This definition was introduced in 1959 following German jurist Josef Kohler's definition. Although the substance of the definition is almost accepted, there is opposition against giving a definition of "invention" in a written law (in many other patent systems, invention is not defined directly). Year 1959 (MCMLIX) was a common year starting on Thursday (link will display full calendar) of the Gregorian calendar. ... Josef Kohler (March 9, 1849 - August 3, 1919) was a German jurist. ...

In the generally accepted interpretation the phrase highly advanced does not imply a requirement for an inventive step since the matter of inventive step is dealt with in Article 29, paragraph 2. The definition may have been included in light of the Utility Model Act of Japan which gives a definition of a device as "the creation of technical ideas by which a law of nature is utilized". The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive, i. ...

Patent prosecution

The patent prosecution procedure under Japanese law is similar to that in most other patent systems. Article 39 states that a person who is the [first to file an application for a patent for an invention may obtain that patent, rather than a different person who is the first to invent the same invention. Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ... First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. ...

(This is a summary; Article 49 contains a full list of conditions.) In patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i. ... Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application. ... The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive, i. ... In urban planning, the notion of public order refers a city containing relatively empty (and orderly) spaces; which allow for flexibility in redesiging the citys layout; such perceptions played an important role in the establishments of suburbs. ... -1... Public health is concerned with threats to the overall health of a community based on population health analysis. ... Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ... Sufficiency of disclosure refers to the legal requirement that the description of an invention in a patent contain specific information about the invention. ... A person having ordinary skill in the art (PHOSITA) or the person skilled in the art is a legal fiction defined in the Patent Act of the United States, and similarly by other patent laws in the world. ... In most patent laws, unity of invention is a formal administrative requirement that must be met by a patent application in order to proceed to grant. ...

Article 30 provides a six-month grace period for disclosures made through an experiment, publication, presentation at a study meeting or an exhibition (a trade fair or the World's Fair) or for if the invention becomes known to public against the applicant's will. Such disclosures do not form part of the prior art. This is in line with the European patent law but is significantly narrower than that provided by the United States patent law. The 2006 LinuxWorld trade show at the Boston Convention and Exposition Center. ... Worlds Fair is any of various large expositions held since the mid-19th century. ... This article or section cites very few or no references or sources. ... European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. ... The United States patent law is a first-to-invent patent legal framework in contrast to all other national patent laws. ...

Application

A person desiring a patent shall submit a request, specification, claims, any drawings necessary, and the abstract to the commissioner of the Japan Patent Office (Article 36). Article 36bis allows an application in foreign languages (currently only in English) if the applicant submit Japanese translation within two months from the filing date. However, the applicant may not amend the foreign language file (Article 17, paragraph 2).

Publication of application

Applications are published without a search report after 18 months has expired from the filing date (Article 64). The applicant may request for early publication (Article 64bis). A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ...

Examination

Request for examination and payment of examination fee are needed for an application to be examined (Article 48bis). Everyone can request examination within three years from the filing date (Article 48ter), (this time limit is to be applied for patent applications filed after October 1, 2001) ^[4] if they stand examination fee (Article 195, paragraph 2).

A qualified examiner examines the application (Article 47). The examiner will notify the applicant of the reasons for refusal before making the decision to refuse a patent (Article 50), pointing out some of the above conditions for patent are not met. The applicant may submit a statement or amendments against the reasons for refusal, within a time limit designated by the examiner (Article 17bis and 50). The time limit is normally 60 days after the date of notification for applicants living in Japan, or three months after the date of notification for applicants living in foreign countries.

If the examiner finds that some reasons for refusal notified to the applicant have not dissolved by the applicant's statement or amendment, the examiner issues a decision to refuse a patent (Article 49); otherwise the examiner issues the decision to grant a patent (Article 51).

Opposition procedure after an examiner's decision to grant a patent was abandoned in 2003; trial for invalidation (Article 123) serves as the alternative. 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

Whenever the applicant is allowed to amend the claims, specification, and drawings of a certain application, the applicant may derive a new application from the application (Article 44). This is called "division of application". Division of application is not allowed after the applicant received a copy of the examiner's decision to grant a patent.

Examination Guidelines

The Japan Patent Office's interpretation of the patent law related to examination procedure is provided for in the Examination Guidelines for Patent and Utility Model in Japan. An English translation [1] is also available, though legal revisions in recent years are not reflected in the English version.

Trial against examiner's decision of refusal

Applicants dissatisfied at the decision of refusal may demand a trial within 30 days from they received a copy of the decision (Article 121). Amendments are allowed within 30 days from the date of demand for the trial (Article 17bis, paragraph 1).

If amendments are made, an examiner will re-examine the application (Article 162). Usually the examiner who made the decision of refusal is appointed for re-examination. The examiner will make a decision to grant a patent, or report to the Commissioner if there are reasons for refusal that have not dissolved by the amendments (Article 164).

In case amendments were not made, or the examiner reported that reasons for refusal still remain, a group of three or five qualified trial examiners (Article 136) conduct the trial by communicating with the applicant in letters (Article 145, paragraph 2).

A person dissatisfied at the trial may demand a retrial (Article 171), or may sue the commissioner of the Japan Patent Office in quest of the patent (Article 178 and 179).

Patent right

After payment of the annual fees for the first three years, a patent right comes into force by registration (Article 66). The commissioner issues the certificate of patent to the patentee (Article 28). The term of patent is 20 years from the filing date. It may be extended for medicines (Article 67). In most patent laws, maintenance fees or renewal fees need to be paid during the term of a patent in order to maintain it into force. ... The term of a patent is the maximum period during which it can be maintained into force. ... It has been suggested that Blockbuster drug be merged into this article or section. ...

A patentee have an exclusive right to commercially work the patented invention (Article 68), where "work" an invention means (Article 2, paragraph 3)

The statements of patent claims determine the technical scope of the patented invention (Article 70). However, the doctrine of equivalents may be employed. Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ... The doctrine of equivalents is a legal rule in most of the worlds patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent...

A patentee may grant an exclusive license (Article 77) or a non-exclusive license (Article 78).

Infringement

In case someone is likely to infringe a patent, the patentee may This page meets Wikipedias criteria for speedy deletion. ...

[[Media:=== Trial for invalidation === Everyone may demand the commissioner of the patent office a trial for invalidation of a patent against the patentee (Article 123). A group of three or five trial examiners (Article 136) conduct the trial, gathering the parties to the patent office (Article 145, paragraph 1 and 3). The patentee may demand restriction of claims, or correction of errors or ambiguity (Article 134bis, added in 2003) to avoid the invalidation.

A lawsuit against patent infringement may be suspended until a trial decision of the patent office has become final and conclusive (Article 168, paragraph 2).]][[Media: Image:Example.ogg'Italic text'Italic text_{Bold text} Image File history File links Example. ...

Criminal penalty

Japanese patent law says patent infringement is a crime. A person who has infringed a patent right must be engaged in penal servitude for at most five years, or must pay a fine of at most five million yen (Article 196). In addition to the above penalty for an infringer, a firm that the infringer belongs to must pay a fine of at most 150 million yen (Article 202). Japanese 10 yen coin (obverse) showing Phoenix Hall of Byodoin Yen is the currency used in Japan. ...

According to statistics of the National Police Agency of Japan, however, only four people were arrested for the infringement of patent in 2003. The National Police Agency (警察庁 Keisatsucho) is the central coordinating body of the Japanese police system. ... 2003 (MMIII) was a common year starting on Wednesday of the Gregorian calendar. ...

Judgments of the Supreme Court

Doctrine of equivalents

In 1998, the Supreme Court of Japan showed in judgment the requirements for applying the doctrine of equivalents. The judgment says [2] The Supreme Court of Japan ((æœ€é«˜è£åˆ¤æ‰€ SaikÅ-Saibansho; called æœ€é«˜è£ SaikÅ-Sai for short), located in Chiyoda, Tokyo is the highest court in Japan. ... The doctrine of equivalents is a legal rule in most of the worlds patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent...

Exercise of patent that would be invalid

In 2000, the Supreme Court of Japan said in judgment [3] 2000 (MM) was a leap year starting on Saturday of the Gregorian calendar. ...

and clarified that a court may judge the invalidity of patent in a patent infringement lawsuit.

History

The history of Japanese patent law began with the opening of the Meiji era. Fukuzawa Yukichi introduced the concept of patent to Japan in his writings in 1867. In the next year, the Meiji Restoration occurred, and the modernization of Japan started. History of Japan Paleolithic Jomon Yayoi Yamato period ---Kofun period ---Asuka period Nara period Heian period Kamakura period Muromachi period Azuchi-Momoyama period ---Nanban period Edo period Meiji period Taisho period Showa period ---Japanese expansionism ---Occupied Japan ---Post-Occupation Japan Heisei The Meiji period (Japanese: Meiji Jidai 明治&#26178... Fukuzawa Yukichi (ç¦æ¾¤ è«å‰ Yukichi Fukuzawa, January 10, 1835 - February 3, 1901) was a Japanese author, writer, teacher, entrepreneur and political theorist and founder of the Keio University whose ideas about government and social institutions made a lasting impression on a rapidly changing Japan during the period known as the Meiji Era. ... Cunt BAg Twat Fuk suck my penis ring 0778851865!!!!!!Year 1867 (MDCCCLXVII) was a common year starting on Tuesday (link will display the full calendar) of the Gregorian calendar (or a common year starting on Thursday of the of the 12-day slower Julian calendar). ... The Meiji Restoration ), also known as the Meiji Ishin, Revolution, or Renewal, was a chain of events that led to enormous changes in Japans political and social structure. ...

In 1871—the fourth year of the Meiji era, an experimental patent system was implemented. It was abandoned in the next year. 1871 (MDCCCLXXI) was a common year starting on Sunday (see link for calendar). ...

The first substantial patent law in Japan was established by the "Patent Monopoly Act" (專賣特許條例 Senbai tokkyo jōrei) on April 18, 1885. (In 1954, the Ministry of International Trade and Industry of Japan declared April 18 as the "Invention Day".) is the 108th day of the year (109th in leap years) in the Gregorian calendar. ... 1885 (MDCCCLXXXV) is a common year starting on Thursday of the Gregorian calendar (or a common year starting on Saturday of the 12-day slower Julian calendar). ... Year 1954 (MCMLIV) was a common year (link will display full calendar) of the Gregorian calendar. ... The Ministry of International Trade and Industry (通商産業省 Tsūsho-sangyō-shō or MITI) was the single most powerful agency in the Japanese government during the 1950s and 1960s. ...

The first seven patents under the Patent Monopoly Act were granted on August 14, 1885. Hotta Zuisho obtained Japanese Patent No. 1 for an anticorrosive paint. Takabayashi Kenzo obtained Patent No. 2–4 for tea processing machines. is the 226th day of the year (227th in leap years) in the Gregorian calendar. ... 1885 (MDCCCLXXXV) is a common year starting on Thursday of the Gregorian calendar (or a common year starting on Saturday of the 12-day slower Julian calendar). ...

During the Meiji era, all governmental systems frequently changed, and the patent law was no exception. The Patent Monopoly Act was replaced by the "Patent Act" (特許條例 Tokkyo jōrei) in 1888; the Patent Act was replaced by the "Patent Act" (特許法 Tokkyohō) of 1899, which was completely revised in 1909. After the Meiji era, the Patent Act was completely revised twice in 1921 and 1959. History of Japan Paleolithic Jomon Yayoi Yamato period ---Kofun period ---Asuka period Nara period Heian period Kamakura period Muromachi period Azuchi-Momoyama period ---Nanban period Edo period Meiji period Taisho period Showa period ---Japanese expansionism ---Occupied Japan ---Post-Occupation Japan Heisei The Meiji period (Japanese: Meiji Jidai 明治&#26178... Year 1888 (MDCCCLXXXVIII) was a leap year starting on Sunday (click on link for calendar) of the Gregorian calendar (or a leap year starting on Tuesday of the 12-day slower Julian calendar). ... Year 1899 (MDCCCXCIX) was a common year starting on Sunday (link will display the full calendar) of the Gregorian calendar (or a common year starting on Friday [1] of the 12-day-slower Julian calendar). ... Year 1909 (MCMIX) was a common year starting on Friday (link will display full calendar) of the Gregorian calendar (or a common year starting on Thursday of the 13-day-slower Julian calendar). ... Year 1921 (MCMXXI) was a common year starting on Saturday (link will display the full calendar). ... Year 1959 (MCMLIX) was a common year starting on Thursday (link will display full calendar) of the Gregorian calendar. ...

References

^ http://www.cas.go.jp/jp/seisaku/hourei/pc/houkoku_e.pdf
^ http://www.wipo.int/clea/docs_new/pdf/en/jp/jp006en.pdf
^ http://web.archive.org/web/*/http://www.jpo.go.jp/shoukaie/tgaiyoe.htm
^ "Any application for which a request for examination has not been filed within a period of *three years from filing date will automatically be regarded as withdrawal and cannot be patented thereafter." and Note: "The revised time limit is to be applied for patent applications filed after October 1, 2001." in Japan Patent Office web site, Procedures for Obtaining a Patent Right. Consulted on April 24, 2007.

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