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Design

 8-1. What is an industrial design?

(i) You should know the "First to File" principle

According to Article 9 of the Design Act, where two or more design applications for an identical or a similar design have been filed on different dates, only the applicant who filed the design application on the earliest date shall be entitled to registration of a design. That means that if anybody else files an application for the same design or similar design on a later date, that application will be refused.

Design Act: http://www.japaneselawtranslation.go.jp/law/detail/?id=44&vm=04&re=02 (External link)

(ii) Keep your design unpublished or undisclosed before filing

You are advised to keep your design unpublished before filing a design application for the design. Otherwise, your design has lost its novelty, and you may not have your design registered (Article 3, Design Act).

Meanwhile, Article 4 of the Design Act stipulates exception to lack of novelty of design in spite of disclosure of the design to the public before filing for a six month period of time under certain conditions.

(iii) To carefully prepare an application form and drawings

When applying for registration of a design, you are required to prepare a Request for Registration of a Design and drawings in the prescribed manner. The key to appropriately preparing an application lies in how you prepare drawings.

(iv) Appointment of a representative (Patent Administrator)

If you do not have a permanent address or residence (office, if the applicant is a legal entity) in Japan, you are required to appoint a representative such as a patent attorney, in Japan. For more detail, please see FAQ 1-4: "Should I appoint a patent attorney as my representative to apply for a patent, a utility model, industrial design, trademark to the Japan Patent Office from overseas?")

 8-2. How is a procedures for obtaining a industrial design right?

An outline of the procedures for registration of a design is displayed at the following URL:

http://www.jpo.go.jp/tetuzuki_e/t_gaiyo_e/de_right.htm

 8-3. What should I know before I file an industrial design application?

(i) First of all, you should know about the "First to File" principle

According to Article 9 of the Design Act, when two or more applications are filed for an industrial design on different dates, only the applicant who filed the application first will be entitled to register that design. This is called the "First to File" principle. This means that if any other applicants file applications for the same industrial design after the first applicant has applied, those later applications will be refused.

(ii) Second, make sure that you do not publish or disclose your design before you file an application

You should not to publish or disclose your industrial design before you file your application to register your design. Once you disclose your design to the public, your design will be deemed to have lost its novelty and cannot be registered. (This is based on Article 3 of the Design Act.)

In Japan, any design that has been disclosed before an application has been filed to register that design will basically not be able to be registered. However, Article 4 of the Design Act makes an exception to this rule when the design was disclosed due to certain circumstances and an application to register it is filed within six months from the date on which the design was disclosed.

See FAQ 1-1: "Should I search for prior art before applying for a Patent?"

 8-4. How do I make drawings?

In some countries, it is possible to show a design with only one drawing. In Japan, however, it is standard to show a design based on a set of orthographic drawings that include a front view, rear view, left-side view, right-side view, top-view, and bottom-view. All of the drawings must be the same scale. However, it is also possible to show a design by using isometric drawings or oblique drawings.

In addition, instead of submitting a set of drawings, it is also possible to submit photographs, models or specimens that show the design.

Attention

Please note that under Article 8 of the Patent Act, any persons who don’t reside or who are not domiciled in Japan cannot conduct any procedures directly with the JPO and must appoint a representative in Japan. (This same type of provision applies to utility models, designs, and trademarks under their respective acts.) We highly recommend that you appoint a patent attorney as your representative and consult with your representative about the procedures in detail.