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Research Activity Summary of FY2007

1. ‘Feature Statements’ in Applications for Design Registration

   This study examined the feature statement system, eight years after its introduction, by comprehensively surveying and analyzing the actual use of the system by applicants and their awareness of the system.

   An applicant can submit a feature statement on a voluntary basis while the relevant application is pending. Although the content of a feature statement is published in a design bulletin, it is not deemed to be a basis for determining the scope of a registered design. Therefore, a feature statement does not have any direct influence on the “scope of right.”

   In this study, a questionnaire survey and an interview survey were conducted, and the contents of feature statements published in design bulletins were analyzed. In addition, similar systems in other countries, which have both common points and various differences with the Japanese feature statement system, were studied.

   Moreover, the possibility that the feature statement system could develop into a more beneficial system in promoting the creation of designs, which are one kind of intellectual property, was considered, as well as the meaning of the system from a legal perspective.

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2. Desirable Trial System for Early Acquisition of Rights

   The number of requests for a trial against an examiner’s decision of refusal is increasing every year, creating concern that the waiting period for proceedings will become longer. Therefore, it is necessary to consider a desirable system with a view to increasing the speed and efficiency of proceedings. This research study considered the future direction of a desirable trial system by studying, organizing and analyzing users’ needs with regard to the current system and the operation thereof, as well as the systems of other major countries, in order to promote the early acquisition of rights. The themes taken up in this research study are the advisability of the time limit for filing a request for a trial against an examiner’s decision of refusal, the way to state the “grounds for a request” in the written request for such a trial, and the use of reexamination before a trial, interrogation before a trial, the remand system and accelerated proceedings. Divisional applications, continuation applications and requests for continued examination were also considered. In particular, with regard to the time limit for filing a request for a trial against an examiner’s decision of refusal, the majority took the ground that it is appropriate to extend the time limit to around 90 days, as the current period of 30 days is not sufficient to consider the propriety of filing a request for a trial, in light of the questionnaire survey results, systems in other countries and time limits in other appeal systems in Japan.

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3. Patent Examination Practices (Description Requirements) - Description Requirements in the Biotechnology Field -

   The description requirements for descriptions, etc. have been gaining attention in recent years. Given the various arguments going on concerning the description requirements, this study was carried out by a subcommittee on the Study on Description Requirements in the Biotechnology Field, which conducted examinations dedicated to the biotechnology field, and a subcommittee on Study on Desirable Descriptions, which conducted examinations without limiting the technical field. In the Study on Description Requirements in the Biotechnology Field, the relevant subcommittee investigated and examined court judgments and Board of Appeal decisions concerning description requirements in the biotechnology field and conducted a questionnaire survey and an interview survey concerning such requirements. Its aim was to identify any differences between the determinations on the description requirements in Japan and such determinations in Europe and the United States, in the biotechnology field, and to clarify the cause for such differences.

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4. Patent Examination Practices (Description Requirements) - Desirable Descriptions -

   The description requirements for descriptions, etc. have been gaining attention in recent years. Given the various arguments going on concerning the description requirements, this study was carried out by a subcommittee on the Study on Description Requirements in the Biotechnology Field, which conducted examinations dedicated to the biotechnology field, and a subcommittee on Study on Desirable Descriptions, which conducted examinations without limiting the technical field. In the Study on Desirable Descriptions, with the aim of supporting preparation of desirable descriptions that satisfy the description requirements in Japan, the United States and Europe, the relevant subcommittee created examples of desirable descriptions for each technical field and summarized the points to be noted in preparing such descriptions, from the viewpoint of patent obtainment and enforcement in Japan, the United States and Europe.

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5. Typeface Protection in Japan

   A typeface is a set of characters, etc. that has been created for use for printing, display, etc. based on a concept relating to shape. While the creation of a typeface requires certain labor and costs, it is easy to imitate one from printed materials, etc. Therefore, typeface creators require some sort of legal protection for typefaces. In addition, there is no express provision on typeface protection in the current Japanese intellectual property law system. Therefore, it is worth considering an appropriate form of typeface protection in Japan.

   In this study, the actual conditions of typeface creation and transactions in Japan and problems such as the imitation of typefaces were determined and organized. The current status of problems related to typefaces and specific measures to handle those problems were then discussed, along with the need for a new framework for legal protection under the intellectual property law system, with the aim of setting a definite direction for desirable typeface protection in Japan.

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6. Recognition of Joint Inventors and the Place of Invention in International Joint Research Projects

   The description requirements for descriptions, etc. have been gaining attention in recent years. Given the various arguments going on concerning the description requirements, this study was carried out by a subcommittee on the Study on Description Requirements in the Biotechnology Field, which conducted examinations dedicated to the biotechnology field, and a subcommittee onIn recent years, researchers have come to carry out joint research activities without geographical restrictions due to the progress of information and communication technology. This situation is considered to be dramatically improving the efficiency of R&D. However, for cases where researchers in multiple countries jointly complete an invention, two problems have been pointed out from the viewpoint of operation of the patent system. One is the problem that, if the standards for recognition of joint inventors differ among countries, the patenting procedure, etc. may become extremely complicated. The other problem is the question of which country is to be the place of invention. In a country that obligates an applicant filing a foreign application to have filed the first application in that country, this question will be an important determination factor when complying with such obligation. In this study, a survey was conducted in seven countries (including Japan) on statutory laws and regulation, trial decisions by administrative organs, guidelines, court judgments, case examples and academic theories concerning recognition of joint inventors and the place of invention in international joint research projects. The survey results were organized, analyzed and summarized by country, and the points to be noted by Japanese researchers conducting international joint research projects were identified.

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7. New Types of Trademarks

   With business transactions by Japanese companies expanding internationally at a rapid pace, the substantive harmonization of countries’ trademark systems is occupying an increasingly important place. However, while new types of trademarks, including sound, olfactory and motion trademarks, are not subject to protection in Japan, they have already been protected in the United States, European countries including the United Kingdom, Germany, France and the OHIM, and Australia. Given this, this study considered a desirable means of protecting new types of trademarks under the Trademark Act in Japan, focusing on the needs, international circumstances and legal issues that would arise if such trademarks were made subject to protection in Japan. In other words, as the number of countries where new types of trademarks are subject to protection increases, this study analyzed and summarized the new types of trademarks that should be protected in Japan, considering the perspective of international harmonization, including responses to the Madrid system, as well as needs seen by type, and the status of filing and registration in other countries.

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8. Expanding the Protection of Famous Trademarks

   In the course of the globalization of economic activities and diversification of business lines in recent years, there is an increasing risk that the proprietary nature of trademarks, particularly famous trademarks, could be damaged. In the United States and major European countries, if a registered trademark is widely known or if its reputation is damaged, that trademark is protected while the relevant acts are deemed to constitute a trademark infringement, beyond the scope of the registered goods or services. The need to consider a desirable trademark system in Japan - including the expansion of the prohibitive effects of trademark rights and the significance of the defensive mark registration system - has been pointed out.

   Against such a backdrop, in this study, the significance of the existence of the defensive mark registration system was redefined with regard to expanding the protection of famous trademarks. Surveys on the legal systems, etc. of countries/regions that have recently abolished or still maintain a defensive mark registration system were also conducted with regard to the questions of whether the prohibitive effects of registered trademark rights should be expanded to dissimilar goods or services that are likely to cause confusion, and how the problem of dilution of trademarks should be handled. A comparative study between Japan and these countries/regions was then conducted. Moreover, taking up the problem of trademarks on the Internet, an ideal form of Japanese legal system was examined by examining the legal systems of the United States and European countries, as well as court cases in which trademarks specifically became an issue.

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9. Quality Management System that Takes into Consideration the Evaluations Made by Patent Applicants and Agents

   The purpose of this survey research is to conduct a survey as a means to analyze patent examination objectively and cross-sectionally on various technical fields, and apply to improve the quality management system based on the analysis results. This research, which focuses on applicants’ and agents’ evaluations of the quality of patent examination, consists of the following three parts: (1) Research on the current quality management systems of foreign patent offices, (2) Trial questionnaire-mailing survey on applicants and agents, and (3) Interview survey on applicants and agents to obtain their evaluations of patent examination and their opinions on survey methods. Based on the findings of this research and surveys, we identified and analyzed issues concerning a quality management system that takes into consideration the “evaluations by applicants and agents” and explored measures to solve those issues. We were pleased to find that the response rate of this trial survey was extremely high in comparison with that of other similar surveys conducted by foreign patent offices. The fact that many interviewees subject to the interview survey expressed positive views on the questionnaire survey suggests that many applicants and agents recognize the need for this type of survey. It is therefore important for us to conduct such a survey on a regular basis, while making efforts to further improve the questionnaire based on the findings from the analysis and examination carried out in this survey research.

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10. Operations of the Deposit System

   The patent microorganism deposit system is intended to ensure that third parties will be able to work biological inventions. An international depositary authority (IDA) as defined under the Budapest Treaty must store deposited microorganisms for at least for thirty years, and also for five years from the latest furnishing. During that period, deposited microorganisms must be available for furnishing. On the other hand, some users say that preparing the quantity of samples required by a depositary institution before patent filing is a heavy burden. Therefore, reduction of burden in depositing is being requested in the field of biotechnology, which is making remarkable progress.

 With regard to these issues under consideration, this study has determined the deposit systems of major countries and overseas institutions, the actual conditions of deposit/furnishing by overseas IDAs and the needs of users in Japan, and examined which operations of the deposit system can reduce the burden of deposit at the time of patent filing while maintaining the purpose of the deposit system, in light of consistency with the provisions of the Budapest Treaty.

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11. Problems Related to Patent Enforcement in Japan, the United States and South Korea

   In recent years, there have been business models in which companies purchase patents from others despite having no intention to use the patents themselves, and enforce patent rights against companies engaged in relevant business solely for the purpose of acquiring royalties. Such enforcement is usually regarded as justifiable, but it is sometimes regarded as abusive enforcement, depending on the mode of enforcement.

   Meanwhile, protection of inventions by monopolistic rights-patent rights-is essential for the development of industry, which is the purpose of patent law, and there is hope that intellectual property businesses that support the use and marketing of patent rights will develop in order to stimulate innovations. However, if any mode of enforcement were to be allowed, including abusive enforcement of patent rights, it could hinder industrial development and obstruct the sound business activities of companies in reverse.

   This study focuses on problems related to patent enforcement, and investigates the current status of business models related to patent enforcement, in order to create basic materials that contribute to future studies made from the viewpoint of enforcement.

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12. Fiscal 2007 Survey on the Application Behavior for Industrial Property Rights of Japanese Companies

   The strengthening of management with emphasis on the creation and exploitation of intellectual property is an important challenge for Japanese companies in increasing competitiveness. The “Intellectual Property Strategic Program 2007,” compiled in May 2005, also advocates that, in order to make Japan an “intellectual property-based nation” and enhance the international competitiveness of Japanese industries, it is important for Japanese companies to carry out management that emphasizes the exploitation of intellectual assets, etc., which are sources of competitiveness. In light of the above, this survey report conducts eight empirical analyses in total with regard to the impact of M&A, which has become increasingly important in recent years, on companies’ intellectual property-related activities, the characteristics of intellectual property-related activities of SMEs or unlisted companies, the effect of the pro-patent policy relating to software patents and the strategic use of design rights and trademark rights, which have not been studied much in the past. Furthermore, regarding the “Survey of Intellectual Property-Related Activities,” which is used for these analyses and is the only statistical survey of intellectual property-related activities in Japan, this study report conducts the review of the questionnaire sheet, as well as the review of the estimation method and the classification of types of industry.

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13. The Patentability and Scope of Protection of Pharmaceutical Inventions Claiming Second Medical Use - the Japanese and European Approaches as Possible Paradigms for a Developing Country like Brazil
VivianeYumy Mitsuuchi Kunisawa
Invited Researcher, Institute of Intellectual Property
Research Fellow,the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich; Attorney at Law in Brazil

   Progress in technology in the pharmaceutical area is often achieved by the development of further uses of an already known substance. Patent protection plays an important role by insuring investments in Research & Development (R&D) and in clinical trials necessary for the marketing of a new drug. The Examination Guidelines of the Japanese Patent Office (JPO) of 2005 have established some standards for the examination of patentability requirements of such inventions, classifying them as “inventions of products”. There are discussions about the adequacy of the protection given to these kinds of inventions. The European Patent Office (EPO) has been accepting them under the so-called Swiss-Type claim wording since 1985. It has also clarified that such claims are towards an “effect” achieved by a substance (not to the production of a product). This led to the interpretation that such claims afford a product-by-new-use protection. In 2004 the EPO also dealt with the admissibility of claims concerning dosage regimes. The new European Patent Convention (EPC) 2000, in force as of December 13 of last year, introduces some changes that might lead to different practices by the EPO in the future. The research aims at analyzing the patterns of patentability and scope of protection of pharmaceutical inventions claiming second medical use in Japan and in Europe. The analysis intends to be helpful in the development of the Brazilian patent system, where the situation still remains unclear.

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14. A Comparative Analysis on the No-Challenge Obligation in the Patent Licensing and Assignment Agreement between Korea, Japan, the US and Germany
Hyojil Ahn
Invited Researcher, Institute of Intellectual Property
Associate Professor of Law, College of Law, Korea University

   There is a lot of debate both in the inside and outside of Korea about the possibility of invalidity claims made by either the licensee or the assignor of the patent rights. Most controversial are particularly the problems whether including "no-challenge" provision in license agreement is a misuse of the patent right or constitutes an anti-competitive behavior under the antitrust law and whether the licensee or the assignor is, based on the principle of trust and good faith, prohibited from challenging the validity of the licensed or assigned patent, even if there is no such provision. This issue consists fundamentally of conflicts between general principles of the contract law such as the principle of trust and good faith or the principal of estoppel and the purpose of the patent system to promote industrial development. The research will compare and analyze how the laws, judicial precedents and theories of Korea, Japan, the US and Germany inclusive of EU are implemented, applied and interpreted regarding such conflicts and conclusively will suggest a reasonable standard as to how to deal with these problems.

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15. The Protection of Screen Image Design - A Comparative Study between Chinese and Japanese Laws -
Yuying Guan
Invited Researcher, Institute of Intellectual Property
Doctor of Law, Intellectual Property Center (IPCC), Chinese Academy of Social Sciences (CASS)

   New and unique image designs are worth protecting under intellectual property laws and other related laws. An image design may be also protected by the Copyright Law, Trademark Law or Unfair Competition Prevention Law in Japan, yet in practice protections under these laws are not so easy to acquire. Japan strengthened the protection on image design by having revised its Design Act in 2006 to extend the scope of industrial design including image design.

   In China, an image design theoretically may also be subject to the protection of Copyright Law, Trademark Law or Anti-Unfair Competition Law, yet in practice these protections are of little significance. Chinese Patent Law may also protect an image design to some extent, but since there’s no partial design concept, the right owners or applicants of image designs registered or applied as partial designs in foreign countries will meet some problems. These problems may be partly corrected by changing the way of submitting application documents, and not impede the grant of right, since the substantive examination is not required for design application. However, the status of the right obtained in such a manner is also unstable. More effective approaches should be considered for the needs of providing explicit rules in Chinese legal system, strengthening protection on image design, and meeting international trend of intellectual property system.

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16. Basic Study on the Intellectual Property Security System in Germany - Security Systems as Distribution and Management Schemes for Intellectual Property Rights -
Masanori Ikeda
IP Expert Overseas Research Program in FY2006,Institute of Intellectual Property
Graduate School of Business Science, University of Tsukuba, Advanced Study of Business Law, Professor

   In recent years, we have seen many disputes arise over intellectual property rights. An increasing number of those disputes have made headlines due to their important social implications. These disputes clearly indicate that people have started recognizing the social value of intellectual property rights. Those who have recognized the financial value of the rights have been demanding permission to make financial use of those rights. For example, the use of intellectual property as collateral to raise funds would benefit both the fund receiver and the fund provider because the fund receiver can raise enough funds in spite of being a new company without sufficient properties to secure a loan, while the fund provider can broaden the range of assets that can be used to secure its loans. This paper aims to reveal the structure of the intellectual property security system in Germany and to analyze problems associated with the system. A comparison between the German law and the Japanese law would be insightful for our study of the Japanese intellectual property security system. The following sections first provide the outlines of the intellectual property systems under the German law. Each of the systems is examined with a focus on the historic background and characteristics. Second, the intellectual property security system in Germany is briefly described. Third, a study is conducted as to whether the insolvency of either of the parties concerned would affect the effect of collateral. Finally, insights gained from this study are discussed in association with the Japanese intellectual property security system.

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17. Some Observations on the Balancing of Intellectual Property Rights with Information Freedom from the Perspective of Constitutional Law: In Search of Basic Principles in Law Relating to Information Technology
Itsuko Yamaguchi
IP Expert Overseas Research Program in FY2006,Institute of Intellectual Property
Associate Professor, Interfaculty Initiative in Information Studies, University of Tokyo

   What are the implications of treating certain forms of “information” as “property” and investing the “owner” of that property with legally recognized “intellectual property rights”? How can such “intellectual property rights” be grounded and theorized in legal terms? In recent times, in Japan, laws for the protection of “intellectual property” have come to be understood as legal instruments for the protection of “proprietary information”. This is the dominant view underlying the current heightened consciousness of the importance of intellectual property rights in that country. The concept of “information”, however, is open to numerous interpretations. It is also something that should, in principle, remain free. In this paper, I focus on the very heart of industrial property rights, namely patents, looking in particular at recent debates in the United Kingdom, with the addition of some comments, where appropriate, on the situation in the United States. Besides investigating the meaning and origins of basic concepts relating to intellectual property and intellectual property rights, their nature, theoretical foundations and justification, I will also consider specific issues surrounding the scope of “patentable inventions”. On the basis of this discussion, I will conclude with some suggestions for the future of intellectual property law in Japan with a particular view to balancing intellectual property rights with the freedom of information. I give particular emphasis to the tension between private rights and the public interest (a tension which is inherent to the whole notion of intellectual property) and warn against the danger of falling too easily into tautological justifications for the protection of intellectual property rights.

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18.  Intellectual Property Rights as “Property”: A Basis for Discussion on Information Transaction Contracts
Maiko Fuchi
Long-term Overseas Research Fellow for FY2005,Institute of Intellectual Property
doctorial candidate, School of Legal and Political Studies, The University of Tokyo

   This report consists of three parts. The first part outlines the basis for justification of intellectual property rights that is actively discussed in the United States, with a focus on the origin and positioning of each theory. The second part reviews the arguments on property in the United States. Property is a compulsory subject in US law schools. This part gives an overview of the entire picture of property by discussing acquisition of property, details of the rights, the relationship between private individuals concerning property, and then the relationship between private individuals and governments concerning property. In relation to each point, intellectual property-related court decisions are introduced and compared. An attempt has been made to explore where intellectual property rights should be positioned in the United States where, unlike in the continental legal system, there is no concept of distinguishing between real rights and claims. The final part introduces some articles that serve as the key to thinking where to position intellectual property rights in the system of property, so as to contribute to future studies on the ideal design of intellectual property systems.

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19. Trademark-related Issues Raised by the Internet - with a Focus on Injunctions against Domain Name Use
Azusa Ichimasa
Research Fellow, Institute of Intellectual Property

   We have the issue of infringement of a trademark by a third party’s use of the trademark in a domain name (e.g., example.co.jp), which serves as an address on the Internet. No consensus has been arrived at as to what extent a trademark should be protected if a conflict occurs between the trademark owner and a third party. For example, a trademark owner may file an action against a third party who parodies the trademark and uses “freedom of expression” as a defense.

   This research uses the fair use doctrine adopted under U.S. law to analyze the trademark protection provided by the court in domain-name disputes. First, this research briefly describes U.S. trademark law with a focus on the fair use doctrine adopted under U.S. law. Second, this research discusses two Japanese laws applicable to trademark-related issues, i.e., the Trademark Act and the Unfair Competition Prevention Act. With reference to the fair use doctrine, this research suggests how to judge whether a certain act has been committed for self-profiting or other-harming purposes, which is one of the criteria adopted under Japanese law. This research also suggests what remedies (e.g., an injunction against the use of a domain name) should be made available under Japanese law. The analysis of these domain-name disputes helps us determine what alterations to make to Japanese intellectual property law and policy.

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20. Problems Arising from Duplicated Protection by Patent Rights and Copyrights - With a Particular Focus on Computer Programs Created in the Course of Duty -
Tsuyoshi Uchida
Research Fellow, Institute of Intellectual Property

   This research paper aims to develop a theory of interpretation and enactment regarding the way to adjust the relationship and effects of patent rights and copyrights in cases where an employee’s creation of a computer program in the course of his or her duty gives rise to a mixture of protections of by multiple intellectual property rights. For this reason, and with regard to the ownership of patent rights and copyrights, I will compare the requirements and effects of an employee’s invention and an employee’s work, clarify the differences and determine whether these differences may be resolved through interpretation. Moreover, I will examine the relationship between patent rights and copyrights in cases where protections are entangled due to different ownership entities for the patent rights and copyrights are different as a result of the differences between an employee’s invention and an employee’s work, from the perspective of the nature of these rights and provisions (the Design Act, Article 28 and the SIC Act, Article 13) which make adjustments for conflicts of rights. Through this review and by means of comparisons with the employee’s invention system in the U.K., I will expose a desirable method for adjustment in cases where protections are mixed due to differences in the requirements and effects of an employee’s invention and an employee’s work.

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21. Use of Patents by Firms on Competition Strategies - Empirical Analysis Using Patent-Related Statistics
Masayo Kani
Research Fellow, Institute of Intellectual Property

   This research verified the factors that have an influence on the determination of a strategy to technically exclude other firms, out of firms’ patent utilization strategies. Firstly, firms were classified into those that can implement a strategy to technically exclude other firms (discrete technology product firms) and those that cannot do so (complex technology product firms), according to the technical characteristics of the products dealt with by the firm. The research empirically proved that the structure of patent utilization strategies differs between discrete technology product firms and complex technology product firms. On that basis, analysis was conducted on the patent utilization strategies of the former firms. These firms can implement a strategy to technically exclude other firms using patents in order to gain excess profits in the product market, since they lack a technically complementary relationship with other firms. On this occasion, the technology environment matters. Under circumstances where there are many firms in the technology environment a firm faces and other firms’ products using substitute technologies grab the market share, the advantage of exclusive in-house use of patents in the product market is small. However, even in such an environment, firms can technically exclude other firms and maintain their market share by establishing patent blocking and preventing other firms from patenting substitute technologies. This research shows that the technology environment has an influence as one of the determining factors for a strategy to technically exclude other firms using patents.

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22. Succession of Right to Obtain a Patent in Private International Law - In the light of the Supreme Court Decision in the Hitachi Case -
Miho Shin
Research Fellow, Institute of Intellectual Property

   This research intends to examine the following issue from the perspective of private international law: by which country’s law should the legal issues arising from cases where rights to obtain patents in domestic or foreign countries are succeeded in an international context be governed? Now we have the Supreme Court judgment with regard to the compensation for succession of rights to obtain foreign patents concerning an employee’s invention; however, various opinions shall be examined regarding its significance, the validity of the underlying theory, its applicable scope, etc., for which a final evaluation has yet to be determined. Many unsolved questions remain.

   This research begins with an analysis of the judgment of the Supreme Court and relevant doctrines, etc. It then examines which country’s law should be applied for various issues derived from the International Succession of rights to obtain patents through an examination concerning the Territoriality Principle and considerations from the perspective of comparative law, etc.

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23. On Quality of Patent and Application Behavior Related to Patent Pool
Naotoshi Tsukada
Research Fellow, Institute of Intellectual Property

   Cases have been found where a patent pool is formed as a mechanism to license technical standard-related essential patents as a package due to increasing sophistication and complication of technology and the growing importance of intellectual property. We make a statistical analysis regarding the incentive to participate in the patent pool which varies with the characteristics of a pool-related company, and the difference in the patent-filing behavior. In particular, we use the U.S. essential patents managed by MPEG LA LLC like MPEG-2 and MPEG-4, standards of moving picture compression technology, as the object of analysis to examine in detail their relationship with the quality of a patent measured in terms of the utilization frequency of continuing applications and the number of citations. At the same time, by making a comparison to the trend seen not only in those essential patents but also in the total U.S. patents, we explain the characteristics of the technical standard-related essential patents. In the future, we want to discuss issues such as the incentive to participate in the patent pool and fairness among companies as licensors related to the pool.

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