As we all know, Japan's strength after World War II largely benefited from its national policy of building the country through science and 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 the number of patent applications ranks 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.
First, the origin of the Japanese patent system
Ancient Japan was a backward country developed under the influence of China culture. Generally speaking, advanced ancient civilizations experienced the Bronze Age before entering the Iron Age. However, with the help of Chinese mainland culture, Japan directly developed 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 "the Japanese outlook on life is embodied in virtues such as loyalty, filial piety, friendship, benevolence and human feelings." [1] In this way, the Japanese "always attach importance to intangible resources" and think that "spirit is everything and will never change. Matter is of course indispensable, but it is secondary and instantaneous. " [2] In this culture, although there are some examples of providing incentives 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. 172 1 (six-year insurance) The notice of "new rules and regulations" says: "In short, new types, such as containers and fabrics, are not allowed to be manufactured." There is another cloud: "All goods should be based on traditional antique, but in recent years, their colors and varieties have been changed to create novelty, and such things are forbidden, remember."
The first thing to change this situation is the rise of Japanese "Lan Xue" [③]; 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, Fukuzawa Yukichi (1834- 190 1), an enlightenment thinker in Meiji era, first introduced the European and American patent system to Japan. What distinguishes Fukuzawa Yukichi from other enlightenment thinkers is that he not only realized the superficial phenomenon of Japan's backwardness in science and technology, but also realized that "what is inferior to foreign countries is academics, trade and law". He first introduced the European and American patent systems 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.
187 1 year (Meiji 4), Japan issued a monopoly order. Although it was abolished in the second year after its implementation, it was still praised by the Japanese as imitating the patent system in Europe and America. Monopoly rule *** 19. The meaning at the beginning is clear: "the inventor of any article, subject to the jurisdiction of the recent monopoly, can apply to the Ministry of Civil Affairs in accordance with the regulations." The principle of first application is adopted, which allows the extension of the validity period and the postponement of the payment of patent fees, and also makes relevant provisions on the use of inventions and patent marks. These regulations broke through the traditional customs and imprisonment, and were "very progressive regulations" at that time [6]. Later, although the monopoly rule was abolished, the advanced patent concept has been deeply rooted in the hearts of the people, which has had a great impact on Japanese nationals, especially some scientific and technological workers, and finally laid the foundation for the establishment of the Japanese patent system.
Second, the establishment of modern patent system in Japan
At the appeal of all walks of life, starting from 1879, the Japanese government re-studied the establishment of the patent system. 1885 (meiji 18), the regulations on monopoly patents were passed and promulgated by the Senate. Although this regulation was quickly amended by the Patent Regulation of 1888 (Meiji 2 1), the patent system has continued since then, which can be described as the first patent law in Japan. 1899 (meiji 32) officially renamed the patent ordinance as the patent law, which has been in use ever since. Later, after several revisions such as 1909 (Meiji 42) and 192 1 (Taisho 10), the modern patent system was really established in Japan.
1885 The Regulations on Monopoly Patents absorbed the relevant patent laws of France and the United States, and laid the foundation for the modern patent system. Article 1 of this regulation stipulates two kinds of patents for products and methods, and the main conditions for granting patents are "novelty" and "practicality". At the same time, the regulations establish the main system of patents: adopting the principle of invention priority; Not to grant patents to medical inventions; The term of validity of the patent right is 5 years, 10 years or 15 years selected by the obligee at will; 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, Industry and Commerce shall manage and grant patents; Wait a minute. The promulgation of "Regulations on Monopoly Patents" has achieved good social effects and received extensive attention and praise from all walks of life in Japan. Among them, the number of patent applications in that year was 425, and 99 were authorized during the year.
1888 "patent regulations" has three important amendments: first, establish the principle that inventors enjoy patent rights; The second is to establish the principle of examination for granting patents; Third, it is stipulated that no patents shall be granted for inventions of methods for making drinks, hobbies and drugs. The "right principle" established by this regulation has changed the "gift" characteristics of the country under the franchise law and established the basic value for the modern patent law based on "private rights". However, the provisions still insist on the decision of the Patent Reexamination Board as the final decision, excluding judicial review from the patent system; At the same time, the regulations do not recognize foreigners' patents and rights related to patents.
1899 The Patent Law not only officially named the Patent Regulations as the Patent Law, but also revised it in many aspects. The main contents of this revision are: (1) In order to participate in the Paris Convention for the Protection of Industrial Property, the rights of foreigners are recognized; (two) for the examination of the patent office, you can bring a lawsuit to the grand court on the grounds that it does not comply with the law or is improperly used; (3) it is clear that the successor of the invention can also enjoy the patent right; (4) The validity period of the patent right is set to 15 years; (five) to change 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 in Japan at that time, and solves the problems of judicial review and foreigners' rights in the patent regulations.
The main contents revised in 1909 are as follows: (1) The provisions on service inventions have been added; (2) adopting domestic well-known principles for the novelty of the invention; (3) The provisions on foreigners' rights 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 review of the exploitation license; (6) The term of validity of the patent right can be extended for more than 3 years to less than 10 years. This revision aims at solving some problems in the application of the Paris Convention, adapting to the development of industrial policies and further strengthening patent protection.
The main contents revised in 192 1 include: (1) changing the principle of invention priority to the principle of application priority; (2) Implementing an application announcement system and an objection system; (3) Before rejecting the patent application, the applicant shall be informed of the reasons for rejection and given the opportunity to state his opinions; (4) Cancel the review system of application and adopt the review system of directly requesting protest; (5) A five-year statute of limitations is set for requesting invalid review (Article 85); (6) A second interview system has been established. This revision is mainly to adapt to Japan's social and economic development after the First World War, and to cope with the trend of internationalization of the patent system.
Patent law in the modern sense is based on natural human rights. According to this thinking, patent right, as an intellectual property right, is a product derived from people and their labor, and it is a kind of "natural right"; Although the patent law is a kind of "franchise law", its characteristic is "private right standard". Therefore, through the above-mentioned patent legislation activities, the patent law, as an industrial policy law, not only played a huge role in Japan's social and economic life, but also established a patent system with modern significance in Japan.
Third, the development of Japanese patent law.
The development of patent law is always linked with the internationalization of patent system. Because modern patent law is based on domestic law, it is increasingly incompatible with the trend of internationalization of patent system. Therefore, in 1959 (34th year of Showa), Japan comprehensively revised the patent law on the basis of referring to a large number of foreign legislations. For this reason, many people think that the current patent law originated from the patent law of 1959. Taking this as a new starting point, Japan's patent law has made great progress after many revisions.
The main contents revised in 1959 are as follows: (1) The criteria for judging the novelty of inventions include domestic publications (paragraph 3 of Article 29 1); (2) New provisions on invention and creativity have been added (Article 29, paragraph 2); (3) The provisions on service inventions have been revised (Article 35); (four) the use of * * * with the application system (the provisions of article thirty-eighth); (5) The validity of a patent is limited to the act of exploiting the invention (Article 68); (6) Change the reexamination system for confirming the patent scope into the judgment system (Article 7 1); (7) People outside China may also exploit other people's patented inventions in the public interest (Article 93); (8) stipulate that the period of validity shall not exceed 20 years from the date of application (article 67), and cancel the system of extending the period of validity; (9) New provisions on infringement (Article 100-106); (10) In principle, the prescription system for requesting invalid review shall be abolished (Article 124); (eleven) the trial level review adopts the first instance system. [⑦]
1970 (in the 45th year of Showa), the Japanese government partially revised the patent law of 1959, and even made some fundamental changes to the original patent system in some places. For example, adopt the system of public application and request for examination, expand the scope of initial application, adopt the system of pre-examination, and so on.
The revision of 1975 (50 years of Showa) mainly includes two aspects, namely, the adoption of the material patent system and several systems.
1978 (53rd year of Showa), in order to cooperate with the patent international cooperation treaty, on the one hand, the Japanese government formulated the Law on International Application of Patent International Cooperation Treaty, on the other hand, it newly established the Special Case of International Application of Patent International Cooperation Treaty in the Patent Law (Chapter 9).
After 1980s, the Japanese Patent Law was promulgated in 198 1 (Showa 56), 1982 (Showa 57), 1983 (Showa 58) and 1984 (Showa 58). 1987 (Showa 62) and 1988 (Showa 63) have revised the relevant provisions of the original patent law. The revision of 1985 is mainly to establish a domestic priority system based on the earlier application, rather than the original supplementary patent system. The modification of 1987 occupies an important position. The main aspects of this modification are as follows: (1) stipulates the deadline for submission of priority certificates; (2) In view of the complete means of international communication, the scheduled time limit for invalid trial has been cancelled; (3) The relevant regulations on handling fees have been revised; (4) The relevant provisions on the submission period of international application translation have been revised; [8] (5) Drawing lessons from the provisions of the United States, the relevant provisions on extending the registration of patent rights are introduced into the patent system. This is mainly because the patents of pesticides and drugs are bound by safety protection laws and regulations and cannot be implemented within a period of more than two years. They can be extended within a period of five years upon the application of the patentee. [9] (6) The scope of multiple inventions that can be applied for is expanded, and it is stipulated that as long as there is considerable technical relevance in industrial applications and research topics, one can apply for one in the same application (Article 33 of the Patent Application and Article 6 of the Utility Model Law) [10]; Wait a minute.
1990 (2 years since Heisei) modified the patent system mainly as follows: (1) defined the abstract attached to the patent application as the retrieval method of technical information; (2) Using the so-called paperless system, we can use electronic information processing or disk in patent and utility model applications; (c) A new registration fee prepayment system has been established [1 1].
1993 (five years after the Heiping period) The modification of the patent system is mainly reflected in the following aspects: (1) The principle of non-examination only examines the formal requirements and basic requirements of utility models, which correspondingly shortens the term of utility model rights to six years from the date of application; (two) the time, scope and number of procedures for correction are limited.
1994 (6 years of peace) The revision of the patent law is mainly reflected in the following aspects: (1) In order to set rights as early as possible, the original application announcement and patent objection appeal system in the patent application examination procedure were cancelled, 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, the records of inventions and creations requiring patent application shall be sufficient and clear, and the records of all requests shall be concise and to the point; (3) Introducing a written application system in foreign languages; (4) Relevant provisions on claiming priority according to the provisions of the Paris Convention (Articles 43 and 43 bis of the Patent Law, Articles 1 1 of the Utility Model Law and Article 15 of the Design Law); (5) Appropriately revised the time limit for procedural correction of patent application, and sorted out the relevant clauses, mainly changing the application announcement before patent grant and the patent objection application system into the patent objection application system after patent grant, which is related to the priority requirement period of Paris Convention and the introduction of foreign language written application system [12]; (six) the establishment of the system of patent restoration after the patent is invalid due to the failure to pay the registration fee; (7) When the Patent Office accepts the invalid trial or the patent objection appeal procedure, 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 correction procedure. [ 13]
1995 (flat 7 years) and 1996 (flat 8 years), the revision of the patent system is mainly reflected in: (1) coordination with the revision of the Civil Procedure Law (Articles 15, 24 and 147 of the Patent Law) (3) the method of deciding the patent objection application (Article 120 5 of the Patent Law); (4) Mode of trial (Article 145 of the Patent Law); Wait a minute.
Fourthly, the latest revision of Japanese patent law.
Recently, Japan revised its patent law in 1998 (Ping 10) and 1999 (Ping 1 1), and revised it three times in 1999. Among them, the modification of199965438+February 8 was mainly carried out in coordination with some modifications in the civil law. 199965438+February 22nd, the revision is mainly to meet the development of independent administrative legal person. Of course, some changes have already been discussed, such as low compensation. At first, the amount of compensation was treated as quasi-negotiorum gestio, and the patent law revised by 1959 changed the compensation for damages from "filling the damage to spitting out unjust enrichment"; However, in the actual operation at that time, this concept was not implemented. In the last two decades, due to the professional patent policy implemented by the United States, Japanese companies have paid high damages. Subsequently, almost all industries in Japan demanded to increase the amount of damages to strengthen the protection of patent rights. In this way, in order to strengthen the protection of intellectual property rights, the legal amendment puts forward plans from many angles.
Specifically, these modifications mainly include: (1) the modification of patent requirements. On the one hand, the scope of publicity and promotion has expanded from domestic to foreign countries; On the other hand, in order to adapt to the development of new technology, the new regulations stipulate that it can be made public not only through public publications, but also through telecommunication lines, which also constitutes publicity (Article 29); (2) When claiming priority, if the matters specified in the application are specified by serial number through electromagnetic method, priority can be claimed by providing serial number (Article 40, paragraph 5); (3) Specific provisions have been made on the relevant time limit for patent divisional applications (Article 44, paragraphs 3 and 4); (4) Relevant provisions on requesting disclosure have been added (Articles 64 bis and 64 ter); (5) The provision not to provide the public with access to relevant materials harmful to public order, good customs or personal reputation and personal quiet life in patent announcements (paragraphs 5 and 6 of Article 66); (6) Relevant provisions on extension of registration during the duration of patent right (Articles 67 bis and 67 bis); (seven) the relevant provisions on the determination of the technical scope of patented inventions have been added (Article 72); (8) The presumption of damages is specified (article 102); (9) Increased the obligation of the defendant to express his behavior in tort litigation (Article 104 bis); (10) Provisions on the presentation of relevant supporting documents in infringement proceedings (article 105); (1 1) added relevant provisions for identifying and determining equivalent damages for calculating damages (articles 105 bis and 105 ter); (12) In the relevant provisions on patent fees, the calculation method of patent fees has been added (paragraphs 2 to 5 of article 107). (13) Reduction and extension of patent fees (109); (14) Relevant provisions on trial clerks have been added (articles 1 16 bis, 144 bis, 147, 150, paragraph 4,1kloc). (15) Relevant regulations on providing certificates and other documents (186); (16) Provisions on handling fees (Article 195) and reduction of handling fees (Article 195 bis); (XVII) Crimes of patent infringement are no longer regarded as complaints (Article 196); (18) In the provisions on two kinds of penalties, legal persons and individuals are given different penalties with different amounts (Article 20 1); (XIX) With the revision of the Civil Law, the concepts of adult guardian, guardianship supervisor, insured, assistant supervisor, assistant supervisor and assistant supervisor have been introduced into the Patent Law (Article 7, 16,139); (20) Law on General Principles of Independent Administrative Legal Persons adopted in coordination with Law 2004/2005. 1999 (Ping 1 1), giving independent administrative legal persons the same treatment as the state in paying patent fees, handling fees and other expenses; Wait a minute.
To sum up, in terms of civil relief, this revision is mainly to solve the problem of low compensation and its calculation, and the revision is also mainly from the perspective of entity and procedure, so as to quickly obtain appropriate and effective damages. Entity is realized by modifying 1998; The procedural law is realized through the modification of 1999.
In the revision of substantive law, article 102, paragraph 1 stipulates that the product of the number of parts that the infringer constitutes infringement and the profit of the unit number that the obligee can sell without infringement shall be regarded as the amount of damage suffered by the obligee within the limits of the obligee's implementation ability. At the same time, the provisions of the compensation amount equivalent to the use fee were revised, and the word "usually" was deleted. After considering the business relationship between the parties and the benefits obtained by the infringer, the appropriate amount equivalent to the use fee shall be determined according to the specific circumstances.
In the modification of the procedure, it is mainly to facilitate the proof of damage. Article 248 of the Civil Procedure Law specifically stipulates that if it is extremely difficult to prove the amount of damage from the nature of the damage, the court may determine the appropriate amount of damages based on all the contents of oral arguments and the results of investigation and evidence collection. At the same time, in the civil procedure law, there is also a calculation appraisal system; However, in patent infringement litigation, even if there is an appraisal, if the actor does not actively assist, the appraiser cannot obtain sufficient information. In this way, a special appraisal system for patent litigation damages was set up in the revision, which is different from the previous appraisal system. Calculation appraisers are recognized experts, such as accountants, who set an obligation to explain the actors. [ 14]
Generally speaking, this revision has played a positive role in strengthening the protection of patent rights, facilitating proof and increasing the amount of compensation. However, it is difficult to determine the amount of damages, which still needs to be explored and improved in many aspects.
For example, about discovery system. If we want to concretize patent infringement in patent infringement litigation, we need to introduce evidence discovery system. The revision of the current law has made various efforts to make the infringement concrete, including introducing the positive denial system, expanding the filing documents and orders, and introducing the computer expert system. However, if the infringer does not actively deny or respond to the written order, even if it is a "true fiction" of the presumed infringement, it is difficult to execute the order to stop the infringement if it is actually different from the actual behavior. Some people think that if the infringer does not actively deny it, measures such as expanding the filing order should be taken, and if the infringer does not obey this filing order, the relevant provisions of the Civil Procedure Law should be followed. In any case, it is believed that the whole intention of the debate should be reflected. At the same time, some people think that in the system of calculating appraisers, the court can't directly interfere with the relationship between appraisers and infringers, and it can't be presumed that true fiction is applicable just because infringers don't help appraisers.
In this revision, the reason why the Civil Procedure Law and the Patent Law did not introduce the discovery system and the system that the appraiser directly went to the infringer's workshop for appraisal was that: in addition to patent litigation, public nuisance litigation and other litigation, it is also hoped to introduce this system; At that time, there was not enough evidence to show that this system must be introduced into patent litigation. "The particularity of intellectual property system makes the necessary explanation of introducing this system insufficient." [15] Moreover, as a private right, patent right is subject to discovery system, allowing appraisers to enter the defendant's production site, and even making business secrets public. Whether this approach is appropriate or whether this authority exploration is applicable to the relationship between experts is a problem, and whether it is beneficial to introduce this system alone remains to be further explored. In addition, the introduction of a foreign system, we must also consider the nature of its various systems will affect the composition of the whole system, which is another problem.
However, it must be admitted that it is very difficult to judge the actual operation of infringement without this discovery system. If we don't overcome the disadvantages of low damages and difficult proof, the whole patent legal system may be hollowed out. "Because in today's era, people can choose the applicable law, so it is possible for people to create conditions for the application of American law and degrade the Japanese legal system." [ 16]
Another example is to stop the perfection of the tort system. This involves the theory of tort damage, false punishment and litigation in this case. After the tort theory, there will be the problem of damage theory, that is, the identification of damage compensation. But once the infringement is identified, it can be stopped immediately without other identification. In other words, the fake punishment can be carried out at the same time as the lawsuit in this case. The main problem here is to concretize the infringement as soon as possible. Therefore, the law must be amended from two aspects: first, when the plaintiff specifies the specific implementation of the other party's behavior, the other party not only denies it, but also advocates its own specific implementation; The second is the issue of filing a writ. This is a procedure conducted only by the judge himself (behind closed doors), and whether it is appropriate or not remains to be discussed. In today's era, if the infringement is not determined as early as possible and the request to stop the infringement is put forward in time, it will not keep pace with the times. Therefore, before determining the amount of damages, it is necessary to issue an order to stop the infringement.
In Japan, there are two opinions at the review meeting on amending the order to stop infringement. First, in order to quickly identify the object or fact of infringement, stipulate the defendant's obligation to cooperate and take sanctions if the defendant does not cooperate. Of course, this also involves the obligation to keep business secrets. Second, general tort litigation is put forward together with stopping infringement, damages and false punishment. In this case, the final judgment cannot be determined until the amount of damages is determined. Therefore, it is necessary to make a judgment to stop the infringement first, and then determine the amount of damages and make corresponding judgments. However, this is difficult to achieve in the litigation system. Only fake punishment can be used here, and even the use of intermediate judgment has become a problem. At the end of the infringement, if the court finds that the infringement exists, it can put forward false punishment.
False punishment started earlier in the United States, including discovery system and summary judgment system. Japan can only propose a settlement after it finds infringement. The content of this kind of advice, different from the order to stop the infringement, is mostly to consider the adverse impact on the defendant and ask for improvement of the design or payment of patent fees.
Verb (abbreviation of verb) New Problems Faced by Japanese Patent Law
Through the above introduction, we know that Japan has established a perfect patent system after more than one hundred years of development. Moreover, through long-term running-in, the system has been integrated with its industrial development and other legal systems. In particular, the recent revision has made Japan's patent law go to the forefront of the world and become more international. However, the further improvement of the patent system is a worldwide proposition, and Japanese patent law is no exception, and it also faces some new issues. [ 17]
First of all, the coordination between the current amendment bill and social development. According to the provisions of the time limit for examination requests, the time limit for patent examination was originally 7 years, but it was recently revised to 3 years. Seven years have seven years of culture and three years have three years of culture; The seven-year period is to promote culture, and the three-year period is to innovate culture. The technology development of enterprises can generally be divided into two types: one is to develop research-oriented technologies that are useful after 5 years or even 10 years from a long-term perspective; First of all, the products planned for commercial use are developed by adopting new technologies. The former must invest a lot of energy and money, and may not know the practical development until later, which may make the development finally give up, but in order to improve the competitiveness of enterprises, it is necessary to develop this cutting-edge technology. Such a seven-year review period is conducive to research-oriented technological development. To explore the influence of culture on patent system, we should not only pay attention to patent culture, but also consider the whole culture and national consciousness. In addition, when the technology development is ahead of the times, the more difficult it is to evaluate the technology ahead of the times, and it will bring more waste to ask for an early review of the request. The United States adopted pre-invention doctrine and did not apply for publicity system. During the application period, subsequent applications for improving inventions can be added. That is to say, only the revision of the patent examination period involves the original institutional basis, national culture and scientific and technological development, and it is a question of how the new bill is coordinated with social development.
Secondly, the supporting construction of other legal systems. For example, the tariff law has a pre-inhibition effect on patent infringement litigation. However, although it is easy to identify infringing trademarks and designs through customs, it is difficult for customs to identify patents. The United States has set up a special administrative agency, the International Trade Commission (ITC), to prevent the import of products infringing patents. In this regard, Japan is faced with how to strengthen the prevention and crackdown on import and export patent infringement.
Third, the corresponding institutional setup and judicial issues. The implementation of professional patent policy in the United States can not be separated from the functional role played by its patent courts, especially in unifying cases. South Korea has also recently set up a patent court, allowing patent office examiners who are not qualified as judges to participate in litigation. At the same time, in view of the technical and professional nature of patent litigation, the training of judges should be strengthened. In addition, by introducing an evaluation system
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