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Right Obtainment Procedures for Japanese Patents
Filing
Japan has adopted the first-to-file system, i.e. the principle that where two parties apply for a patent for the same invention, the first to file will be granted the patent. Accordingly, it is advisable to file as soon as possible after invention. It is also advisable not to make the invention public before filing a patent application.
Formality Examination
Application documents submitted to the JPO will be checked as to whether they are in good format
Publication of Unexamined Application
The JPO will publish the content of an application in the Patent Office Gazette 18 months after the date of filing
Request for Examination
Patent applications are not necessarily examined. An examination will be carried out only for those applications for which the applicant or a third party has filed a request for examination with payment of the examination fees. Any application for which a request for examination has not been filed within a period of three years from filing will be automatically regarded as abandoned.
Substantive Examination
The examination will be carried out by the examiners of the JPO, who will decide whether or not the claimed invention should be patented. An examination will firstly check whether the application fulfills the requirements prescribed by law, i.e., whether or not there are any reasons for refusal. These requirements include the following:
- Whether the claimed invention is based on a technical idea which utilizes a law of nature
- Whether it has any industrial applicability
- Whether the technical idea existed before the filing of the current application
- Whether the claimed invention could have been easily arrived at by a person skilled in the art
- Whether the applicant is the first to file
- Whether the claimed invention is liable to contravene public order and morality, and
- Whether the descriptions in the specification conform exactly with the requirements for patentability.
Notification of Reasons for Refusal
If the examiner finds reasons for refusal, a notice to this effect will be sent to the applicant. An applicant who has received a notification of refusal shall be given the opportunity to submit either a written argument claiming that the invention differs from the prior art to which the Notification of Reasons for Refusal refers, or an amendment of the claims in the case that this would nullify the reasons for rejection.
Argument or Amendment
An applicant who has received a notification of refusal shall be given the opportunity to submit either a written argument claiming that the invention differs from the prior art to which the Notification of Reasons for Refusal refers, or an amendment of the claims in the case that this would nullify the reasons for rejection.
Decision to Grant a Patent / Decision of Refusal
Registration
Provided that the applicant pays the patent fee, once the decision to grant a patent has been made the patent right will come into existence as it is entered in the Patent Register. It is not until this time that the invention acquires a patent number. After the registration of a patent right has been made, a certificate of patent will be sent to the applicant.
Publication of Patent
The contents of the patent right as entered in the register will be published in the Patent Gazette.
