as we all know, Japan's strength after World War II largely benefited from its national policy of building the country through technology. Under the guidance of this idea, Japan's "six laws of science and technology" are relatively complete, and patent law is its core part. Driven by the patent law, Japanese companies have a strong sense of technological improvement and innovation, and their patent applications rank first in the world. As a weapon, the patent system not only brings great vitality and broad development space to Japanese enterprises, but also provides a solid and powerful guarantee for Japan's post-war economic prosperity.
I. Origin of Japanese Patent System
Ancient Japan was a backward country developed under the influence of China culture. Generally speaking, advanced ancient civilizations have experienced the Bronze Age before entering the Iron Age. However, with the help of Chinese mainland culture, Japan developed directly from the primitive fishing and hunting era to the Iron Age and entered the farming civilization. At the same time, it is precisely because of the influence of China culture that "Japanese people's outlook on life is reflected in their virtues such as loyalty, filial piety, friendship, benevolence and human feelings." [1] In this way, the Japanese "always attach importance to intangible resources" and believe that "spirit is everything and lasts forever. Matter is of course indispensable, but it is secondary and instantaneous. " [2] In this culture, although there are some examples of offering rewards for inventions, the whole cultural atmosphere is to inhibit technological innovation, and sometimes even prohibit innovation and improvement. For example, during the Tokugawa period, the policy of locking up the country was implemented. In 1721 (six years of insurance), the notice of "New Rules and Regulations" said: "In short, new products, such as containers and fabrics, are not allowed to be manufactured." There is another cloud: "All commodities should be based on the traditional ancient style, but in recent years, they have changed their colors and varieties to create novelty things, and such things are prohibited, remember."
The first thing that changed this situation was the rise of "Lanxue" [③] in Japan; Secondly, the comprehensive reform of Meiji Restoration. The former paved the way for the development of western learning in Japan; The latter laid a solid foundation for Japan to establish the western "national policy of the trinity of science, industry and education" [4]. On this basis, in order to promote the development of industrial economy, it was Fukuzawa Yukichi (1834-191), an enlightenment thinker in Meiji era, who first introduced the European and American patent system to Japan. What distinguishes Fukuzawa Yukichi from other enlightenment thinkers is that he not only recognizes the superficial phenomenon of Japanese backwardness in science and technology, but also recognizes that "what is not as good as foreign countries is academics, trade and law." He first introduced the patent system in Europe and America to Japan. Moreover, under his advocacy, all walks of life in Japan have introduced and explained the western patent system, and advocated the implementation of this legal system in Japan as soon as possible.
in p>1871 (the fourth year of Meiji), Japan promulgated the Monopoly Rules. Although it was abolished in the second year after its implementation, it was still praised by the Japanese for imitating the patent system in Europe and the United States. Article 19 of the Monopoly Brief. The brief begins with a clear meaning: "the inventor of any article, under the jurisdiction of the recent monopoly, can apply to the Ministry of Civil Affairs in accordance with the regulations." The brief adopts the principle of first application, allowing the extension of the validity period and delaying the payment of patent fees, and also makes relevant provisions on the use of invention and patent marks. These regulations, which broke through the traditional customs and imprisonment, were "a very progressive regulation" at that time [6]. Later, although the Monopoly Rules were abolished, the advanced patent idea had been deeply rooted in the hearts of the people, and had a great influence on Japanese citizens, especially some scientific and technological workers, and finally laid the foundation for the establishment of the patent system in Japan.
second, the establishment of modern patent system in Japan
with the calls from all walks of life, the Japanese government began to study and establish the patent system again in 1879. In 1885 (the 18th year of Meiji), the Regulations on Monopoly Patents was passed by the Senate and promulgated. Although this Ordinance was soon amended by the Patent Ordinance in 1888 (Meiji 21), the patent system has been continuous since then, which can be described as the first patent law in Japan. In 1899 (Meiji 32), the amendment law officially changed the name of "Patent Regulations" to "Patent Law", which has been in use ever since. Later, after many revisions in 199 (Meiji 42) and 1921 (Taisho 1), the modern patent system was truly established in Japan.
in p>1885, the regulations on exclusive patents absorbed the provisions of French and American patent laws and established the foundation of modern patent system. Article 1 of this regulation stipulates two kinds of patents, product and method, and stipulates the main conditions of "novelty" and "practicality" for granting patents. At the same time, the regulation establishes the main system of patent: adopting the principle of invention first; No patent shall be granted for medical inventions; The patent right is valid for 5, 1 or 15 years at the option of the obligee; Adopt supplementary patent system; To stipulate the obligation of the patentee to mark the patent mark on the patented product or package; To stipulate the system of patent implementation and invalidation; It is stipulated that the Minister of Agriculture, Commerce and Industry should manage and award patents; Wait a minute. The promulgation of the Regulations on Monopoly Patents has achieved good social effects and has been widely concerned and praised by all walks of life in Japan. Among them, the number of patent applications in that year was 425, and 99 patents were granted during the year.
There are three important amendments to the Patent Regulations in p>1888: first, the principle of the inventor's right to enjoy the patent right is established; The second is to establish the principle of examination for granting patents; Third, it is stipulated that no patent will be granted for the invention of the preparation method of drinks, hobbies and medicines. The "right principle" established by this regulation has changed the characteristics of "gift" of the state under the franchise law and established the basic value for the patent law based on "private rights" in modern times. However, the regulations still insist that the decision of the Patent Reexamination Board is final, excluding judicial review from the patent system; At the same time, the regulations do not recognize foreigners' patent rights and rights related to patent rights.
In p>1899, the Patent Law not only officially named the Patent Regulations as the Patent Law, but also made amendments in many aspects. The main contents of this revision are as follows: (1) In order to participate in the Paris Convention for the Protection of Industrial Property, the rights of foreigners have been recognized; (two) for the review of the Patent Office, a lawsuit may be filed with the Grand Court on the grounds of non-compliance with the law or improper use; (3) It is clear that the successor of the invention can also enjoy the patent; (four) the validity of the patent right shall be set at 15 years; (5) Changing the amount and payment method of patent maintenance fee; (6) The supplementary patent system has been restored; Wait a minute. This revision is a strong refutation of the "abolition theory" and "criticism theory" of the patent system that appeared in Japan at that time, and solves the problems of judicial review and foreigners' rights in the patent regulations.
The main contents of the revision in p>199 are as follows: (1) Provisions on service inventions were added; (2) adopting the domestic well-known principle on the novelty of the invention; (3) Provisions on the rights enjoyed by foreigners have been added; (four) the scope of the patent is not as effective as the patent; (5) When exploiting an invention, you may request a reexamination of the exploitation license; (six) the validity of the patent right can be extended for more than 3 years to less than 1 years. This revision is aimed at solving some problems in the application of the Paris Convention and adapting to the development of industrial policies, aiming at further strengthening patent protection.
The main contents of the revision in p>1921 are as follows: (1) The principle of first invention was changed to the principle of first application; (2) The application announcement system and the objection system have been adopted; (3) Before rejecting the patent application, the applicant shall be informed of the reasons for rejection and given the opportunity to make representations; (4) Abolishing the re-examination system against the application, and adopting the review system of direct request and protest; (5) A five-year statute of limitations has been set for requesting invalid reexamination (Article 85); (6) A re-examination system has been established. This revision is mainly to adapt to Japan's social and economic development after the First World War and to coordinate with the increasingly international tendency of the patent system.
the patent law in the modern sense is based on natural human rights. According to this idea, the patent right, as an intellectual property right, is a product derived from the person and his labor, and it is a kind of "natural right"; Although the patent law is a kind of "franchise law", it is characterized by "private right standard". Therefore, through the above-mentioned patent legislation activities, the patent law, as an industrial policy law, not only plays a great role in Japan's social and economic life, but also establishes a patent system with modern significance in Japan.
iii. development of Japanese patent law
the development of patent law has always been linked with the internationalization of the patent system. Because the modern patent law is based on domestic law, it is increasingly incompatible with the increasing internationalization trend of the patent system. To this end, in 1959 (Showa 34), Japan comprehensively revised the patent law on the basis of referring to a large number of foreign legislation. For this reason, many people believe that the current patent law began with the 1959 patent law. Taking this as a new starting point and after many revisions, Japanese patent law has made great progress.
The main contents revised in p>1959 are as follows: (1) The standards for judging the novelty of inventions include domestic publications (Article 29, paragraph 1, item 3); (2) New provisions on invention and creativity have been added (Article 29, paragraph 2); (3) The provisions on service inventions have been changed (Article 35); (four) the adoption of the * * * with the application system (the provisions of the thirty-eighth regulations); (5) The validity of a patent is limited to the act of implementing the invention (Article 68); (6) Changing the reexamination system for confirming the patent scope into the judgment system (Article 71); (seven) people outside the country, in the case of public interests, can also exploit other people's patented inventions (article 93); (8) The period of validity is specified, which shall not exceed 2 years from the date of application (Article 67), and the system of extending the period of validity is abolished; (9) New provisions on infringement (Articles 1 -16); (1) In principle, the prescription system for requesting invalid review has been abolished (Article 124th); (eleven) the trial level of the review adopts the first instance system. ⑦
In 197 (45 years of Showa), the Japanese government partially revised the 1959 patent law, and even made some fundamental changes to the original patent system in some places. For example, adopt the system of open application and request review, expand the scope of first application, and adopt the system of pre-review, and so on.
The revision in p>1975 (5 years of Showa) mainly included two aspects, namely, the adoption of the material patent system and a number of systems.
in p>1978 (53rd year of Showa), in order to cooperate with the International Cooperation Treaty on Patents, the Japanese government, on the one hand, enacted the Law on International Application under the Treaty on International Cooperation on Patents, and on the other hand, newly established the Special Case on International Application under the Treaty on International Cooperation on Patents in the Patent Law (Chapter 9).
since 198s, Japanese patent law has been revised frequently, in 1981 (Showa 56), 1982 (Showa 57), 1983 (Showa 58), 1984 (Showa 59), 1985 (Showa 6) and 1987 respectively. The revision in 1987 occupies an important position, and the main aspects of this revision are as follows: (1) the time limit for submitting the priority certificate is stipulated; (2) In view of the complete means of international communication, the invalid trial of scheduled period was abolished; (3) The relevant provisions on handling fees have been revised; (4) The relevant provisions on the filing period of the translation of the international application have been revised; [8] (5) Drawing lessons from the provisions of the United States, the relevant provisions on extending the registration of the duration of patent rights have been introduced into the patent system. This is mainly because the patents on pesticides and medicines cannot be implemented within a period of more than two years due to the constraints of safety protection laws and regulations, and can be extended within a period of five years based on the application of the patentee; [9] (6) Expanding the scope of multiple inventions that can be applied for, stipulating that as long as they have considerable technical relevance in industrial application and research topics, one application can be applied in the same application (Article 33 of the Patent Application and Article 6 of the Utility Model Law) [1]; Wait a minute.
In p>199 (Heisei 2 years), the modification of the patent system was mainly reflected in the following aspects: (1) the abstract attached to the patent application was stipulated as a retrieval method of technical information; (2) Using the so-called paperless system, in the patent and utility model applications, electronic information processing can be used, and disks can also be used; (3) The registration fee prepayment system was newly established [11]. < P > The modification of the patent system in 1993 (5 years after Heiping) was mainly reflected in the following aspects: (1) the non-censorship principle of examining only the formal requirements and basic requirements for utility models was implemented, which correspondingly shortened the duration of the right to utility models, six years from the date of application; (two) the time, scope and number of procedures for correction have been restricted.
In p>1994 (6 years of Heisei), the amendments to the Patent Law were mainly reflected in the following aspects: (1) In order to set the rights early, the original application announcement and patent objection appeal system in the patent application examination procedure were abolished, and the patent objection appeal system was implemented after the patent was granted; (2) In line with the technological innovation and international development trend at that time, it is required that the records of the invention to be patented should be sufficient and clear, and the records of each request should be concise; (3) The system of applying in writing in foreign languages has been introduced; (4) Relevant provisions on claiming priority according to the Paris Convention (Articles 43 and 43 bis of the Patent Law, Article 11 of the Utility Model Law and Article 15 of the Design Law); (5) The time limit for the procedure correction of patent application has been moderately modified, and the relevant provisions have been sorted out, mainly because the application announcement before patent grant and the patent objection application system have been changed to the patent objection application system after patent grant, and it is related to the priority claim period of the Paris Convention and the introduction of the written application system for foreign languages [12]; (6) The system of resuming the patent right after the patent becomes invalid due to non-payment of the registration fee has been established; (7) When the invalid trial or the patent objection appeal procedure is accepted in the Patent Office, in order to avoid adding unnecessary procedures, it is stipulated that the instructions or drawings can be corrected in the invalid trial procedure without setting up a separate procedure for correction. [13]
In 1995 (7 years of Heiping) and 1996 (8 years of Heiping), the amendments to the patent system were mainly reflected in: (1) some amendments made in coordination with the amendments to the Civil Procedure Law (Articles 15, 24, 147, 151, 169 and 171 of the Patent Law). (2) Investigation and preservation of evidence (Article 119th of the Patent Law); (3) the way to decide the application for patent objection (Article 12-5 of the Patent Law); (4) the mode of trial (Article 145 of the Patent Law); Wait a minute.
iv. the latest revision of Japanese patent law
recently, in 1998 (1 years of heisei) and 1999 (11 years of heisei), Japan made the latest revision of its patent law, and in 1999 it made three revisions. Among them, December 8, 1999