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[edit] Legislation

See Article 69 of the Japanese Patent law, and Article 101, Subparagraph 2 of the Patent Law.

Article 36(6)(ii) of the Patent Act, according to the JPO's guidelines,[1] permit's patents on "an invention of a process" or a "product". The Patent Act also specifies that the invention must be "a creation of technical ideas utilizing a law of nature". (See also: Controllable forces of nature)

[edit] Legislative change in 2000

Awareness of the value of intellectual property is rapidly rising. But we have yet to see conspicuous achievement in terms of the policy's actual contribution to technological development," said Kozo Oikawa, commissioner of the Japan Patent Office.

And notes:

Japan's Patent Law had traditionally limited the scope of invention to a "high-level technological concept" created by "utilizing the laws of nature," effectively excluding newly conceived business strategies. Last year, however, the government redefined its guidelines to grant patents on business approaches.

Former Chief Judge of the USA's CAFC, Paul Redmond Michel, described the Japanese situation when reporting from a panel discussion:[2]

The Japanese judge talked about a Japanese Supreme Court case from 1998 that only got fixed by a lower court judge this year [in 2010]. And in the interim there was total chaos in Japan, he said, in application of the doctrine of equivalents.

[edit] Patent office decisions

The Japanese Patent Office publishes Examination Guidlines for Computer Software-Related Inventions.[1] According to the April 2005 version:

When a software-related invention is expressed in a sequence of processes or operations connected in time series, namely procedure, the invention can be defined as an invention of a process [...]
When a software-related invention is expressed as a combination of multiple functions performed by the invention, the invention can be defined as an invention of a product[...]

[edit] Case law

[edit] 2005 METI Study Group Interim Report

(sources: TRIPS and Software Patents in Japan, Dr. Karl-Friedrich Lenz, and (in Japanese) the October 2005 METI report, and someone's made an English translation of the summary)

The executive summary discusses how implementing software innovations always depends on using other software ideas, and concludes:

The following legal measures come to mind for the near future. Make “Rules on Economic Transactions in the Market” that determine in which case exercising patent rights is a misuse of rights. For example, an exercise of patent rights that obstructs communication between software components, where the patent holder restricts transactions between third parties or exercises his patent right in a manner exceedingly contrary to public interest might qualify as “misuse of patent rights”.
(See also: TRIPS)

[edit] Related pages on en.swpat.org

[edit] External links

[edit] References

  1. http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf
  2. http://ipwatchdog.com/2010/10/24/chief-judge-michel-interview-sequel-part-2/


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