Patent Japan

Friday, July 14, 2006

From Archives - Prior Users’ Right

On June 16, 2006, Japan Patent Office issued guidelines, so called “For the Facilitation to Utilize Prior Users’ Right System.”

The guidelines’ aim is to help inventors make a decision whether to file it for a patent or to keep it as a trade secret, when they come up with new technology. But another purpose is that JPO tries to lessen the burden of incoming patent applications, by averting some portion to trade secrets, because they are flooded with huge backlogs.
Indeed, there was a proposal last year to incorporate “Soleau Envelopes”, which is found in France. This proposal has been deliberated at the Industrial Structure Council, but didn’t get enough support from industries then.
This big volume of Prior Users’ Right Guidelines, which is quite well analyzed from a variety of cases to a survey of various industrial sectors, is supervised by Professor Nakayama of Tokyo University.
However, for a prior users’ right to be admitted, a defendant -accused infringer- has to prove that, at the time of plaintiff’s filing of the patent, it is actually using the invention or preparing to use it within the territory of Japan. It would be generally quite difficult to prove, because this is, by definition, an in-house use. (The patent will be invalidated if it is a public use.)

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