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Home > Obtaining IP Rights > Patents > System of Industrial Property Rights

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System of Industrial Property Rights

1. Intellectual Property Rights

In a society which can be described as being saturated with a large amount of information, technological reforms can progress very quickly. Today, this progress involves an international society, and in recent years, this progress has been based on what is known as intellectual rights such as patent rights, trademark rights, confidential business information, copyright, and other rights related to intellectual property (referred to as intellectual property rights). Intellectual property issues cause a number of problems which have attracted much interest in the present society.

To begin with, intellectual property represents an indication pointing out general trends relating to human creativity and management techniques. In concrete terms, this means that the results of intellectual activities of people are represented not only by original and creative ideas ("inventions") or ("utility models"), unique designs ("designs") , but also by music, novels, paintings or similar "works". These works are protected by laws such as the patent law, utility model law, design law, and copyright law. On the other hand, "trade names or trademarks", which represent an indication of business activities are names used in order to conduct a business. These trademarks are names created by the user in order to indicate what kind of services or products can be provided under the "trademark" name (also called a brand). Trade names are also protected by commercial laws and trademark laws. The (narrowly defined) rights which are based on these industrial property rights, such as trademark laws, representing an indication of a business, or design rights, utility model rights, and patent rights, are a result of intellectual acitivities in the industrial spheres, while copyright relates to activities in the cultural sphere.

In addition, new spheres which should be also protected are emerging among theses intellectual property spheres. Among these new spheres are for example biotechnology, electronics-information processing, and other so called high-tech fields which are experiencing a tremendous amount of development due for instance to development of computer programs (involving copyright laws), or semiconductor chips (involving laws protecting semiconductor chips), etc. Moreover, improper acquisition and use of trade secrets such as client lists or manufacturing technologies indicate attempts at production and sale of imitations of products purporting to contain a content or quality representing a trademark (such as a champagne, or a cognac, or another unique regional trademark). These business activities, which are tantamount to a false claim of authorship by another person to receive the benefits connected with a well known brand, also represent unfair competition and thus are subject to regulations relating to improper competition and laws designed to stop unfair competition. (Laws aimed at stopping unfair competition have been adopted in addition to narrowly defined industrial property rights, and in a broad sense, these laws are also related to intellectual property rights).

The fact that protection of intellectual property rights has been strengthened in recent years is due among other things to agreements reached between the WIPO (World Intellectual Property Organization), WTO and TRIPS (an organization for intellectual property rights related to trade), which are specialized UN organs aiming at increasing the level of international consciousness about the effect of increased competitions among countries and industries in each country. These and other agreements have made it possible to create an integrated system designed to protect intellectual property rights in each country through treaties, various international meetings, and similar acitivities.

The Types of Intellectual Property Rights and the System for Their Protection

(1) Intellectual Creations

(a) Inventions
Patent Law

(b) Utility Models
Utility Model Law

(c) Designs

*designs

Design Law

*product form

laws to stop unfair competition

(d) Trade Secrets (manufacturing technologies,customer lists,etc.)
laws to stop unfair competition

(e) Integrated Semiconductor Circuits
laws for protection of semiconductor chips

(f) Copyright (novels, music, etc.)
Copyright Law
*rights similar to copyright
(for stage performance producers,record producers,broadcasters,etc.)

(2) Commercial Symbols

a. new varieties of plants
Seedling Law

b. trade names
Commercial Law

c. trademarks (including service marks)

d. geographical indications (champagne or scotch brands)
Unfair Competition Prevention Law, Liquor Industry Law.

Intellectual Property Rights Registered by the Patent Office

(1) Inventions

*Concrete Examples

products or methods characterized by a high level of a creative technological idea;
items characterized by a longer life cycle than a new utility model;
hardware and related computer programs, items including plants, animals, and microorganisms.

*Applicable Laws

Patent Law

*Protection Period

20 years from the day when an application was filed (a limit of five years is applied to cases of pharmaceutical products and agricultural chemicals, but this period can be extended).

(2) Utility Models

*Concrete Examples

Items having a short life cycle, characterized by the potential for an early implementation and a creative idea relating to the shape of products, their sturcture and other technological aspects;
the technological aspect of a utility model may be on a lower level when compared to a patent;
an idea of a method is not a valid subject.

*Applicable Law

Law for Utility Models

*Protection Period

10 years from the day when an application was filed.

(3) Designs

(3) Designs

*Concrete Examples

The shape, pattern, color, and other design characteristics of of items relating to their external appearance;
a simple picture or drawing is not a valid subject.

*Applicable Laws

Design Law

*Protection Period

20 years from the date of registration of its establishment.

(4) Trademarks

*Concrete Examples

Letters, diagrams, symbols (colors) having the effect of identifying the subjet of various products or services

*Applicable Laws

Trademark Law

*Protection Period

10 years from the day when a created trademark was registered (continuous use can be obtained if an application is updated).

2. Industrial Property Right System

(1) The Aim of an Industrial Property Right System

Industrial development is one of the principal forces contributing to a rich daily life.
This development is the result of research and investment and of the efforts of many talented inventors, authors of utility models, creators of new designs, new tools, new technologies, etc. The purpose of a system of industrial property rights is to encourage and to motivate inventors of inventions and creators of designs, to protect their rights, and to instill confidence in the maintenance of business activities related to trademarks. The system thus must be designed to form a solid base for industrial development.

a. Patent System (Utility Model System)

Section 1 of the Patent Law states that:"The purpose of this law shall be to encourage inventions by promoting their proteetion and utilization so as be contribute to the deverlopment of industry". Inventions and utility models are concept and ideas which cannot be seen with eyes. Such items cannot be controlled in the same manner as tangible objects in our homes and cars which can be owned by anyone and are visible. Accordingly, a suitable protection must be ensured through a system. An invention is something that should be probably kept secret so that it would not be stolen by other people. On the other hand, this would not only make it impossible for the inventor himself to put his own invention to an effective use, but it would also cause other people to needlessly spend resources in order to invent the same thing. That is why a patent system should be designed to prevent such occurrences. On the one hand, a patent system is designed to provide protection which is provided to an inventor when his invention is granted so called exclusive patent rights under certain conditions and for a specified period of time. On the other hand, the system is also designed to contribute to industrial development by promoting technological progress, enabling joint utilization of new technological resources by publishing new inventions.

As far as a system for Utility Models is concerned, th subject of protection of this system is defined only as "utility models relating to the shape of items, their structure or combinations". This is different from the subject of protection in the patent system (for example, a method cannot become a subject for registration in a Utility Model), although the purpose of both systems is identical.

(Note)

The quotation of American President Lincoln "The patent system added the fuel of interest to the fire of genius" can be seen at the entrance of the U.S. Patent and Trademark Office.

b. Design System

Section 1 of the Design Law states the that:"The purpose of this Law shall be to encourage the creation of designs by promotng their protection and utilization so as to contribute to the development of industory".

Designs represent a quest for a better appearance or external form, resulting in enjoyment which is connected with the use of beautiful products. This external appearance is something that can be perceived uniformly by anybody. That is why designs can be easily copied, which poses obstacles to a healthy industrial development because ease of copying can be an invitation to unfair competition.

That is why a design system should be planned so that it would on one hand protect the assets of the creator of a new creative design, while on the other hand, the usage of the design should be also determined so as to encourage design creativity which also contributes to industrial development.

c. Trademark System

Seciton 1 of the Trademark Law states that:"The purpose of this Law shall be to ensure the maintenance of the business reputation of persons using trademarks by protecting trademarks, and there by to contribute to the development of industry and to protect the interests of consumers". Because it goes without saying that consumers benefit from satisfactory economic activities of various companies and other economic entities, a system determining different brands must be created so that consumers can expect a certain level of quality of products or services from certain brands by being eable to determine who is the manufacturer of a certain product or provider of a certain service which they come into contact with.

That is why a system of trademarks which are attached to printed on products or used to identify services must be established in order to protect these trademarks because such trademarks indicate a certain specific function of a product or a service identified by a trademark. The system thus on the one hand protects the interests of the consumer, and on the other hand it also contributes to the development of industries through a design maintaining confidence in the operations of persons using these trademarks for advertising functions or for functions aimed at protecting the quality of products.

(2) Subject matters of Protection under Industrial Property Laws

a. Subject matters of Protection matters the Patent Law

According Section 2 of the Patent Law, the subject of the protection of this law are Patents. Specifically, the purpose of the law is to protect a high level of creativity in technological concepts which use natural laws and rules. Consequently, calculation methods or encryption dtermined by arbitrarily defined rules, for instance for finance and insurance systems or taxation methods, which are not based on natural laws and rules, do not represent a protected subject. The discovery per se (for instance Newton's sudden discovery of a certain rule) is not a protected subject either.Finally, the created product must be characterized by a high level of technological creativity because a creation characterized by a low technological creativity level cannot be protected.

b. Subject matters of Protection under the Utility Model Law

According to Secitons 2 and 3 of the Utility Model Law, the subject matter of protection are forms of products, structures, or combinations of related items which were created using creative technological concepts based on natural laws and rules.

Consequently, methods relating to products are not a protected subject as long as they only relate to shapes and forms of products, etc.

In addition, a high level of creativity applied to creation of a technological concept is no longer required for protected subjects, although this is required for protected subjects under the Patent Law.

c. Subject Matters of Protection under the Design Law

Section 2(1) of the Design Law stipulates that ・'Design・in this Law means the shape, pattern or color or any combination thereof in an article which produces an aesthetic impression on the sense of sight.・ Designs are, therefore, inseparable from articles, or products, and structural functions that are not apparent from the external appearance of a product are not to be regarded as protectable under this Law. Design creations are as abstract as inventions in the Patent Law and devices in the Utility Model Law. However, inventions and devices are technical creations using the laws of nature. Based on this concept, the Patent Law and the Utility Model Law extends protection to inventions and devices respectively. The basic concept in the Design Law differs from these two laws in that it is aimed at identifying creations from the aspect of aesthetic impression and extending protection based on this concept.

d. Subject mattters of Protection under the Trademark Law

According to Section 2 of the Trademark Law, the subject of protections are letters, figures, or combinations thereof, used to certify produced commercial merchandize, or commercial merchandize of parties to which the use of a trademark was transferred, or the role which is played by the commercial activity identified by a trademark or by the party which is exercising this role. While in the past, parties engaged in the use of trademarks for commercial transactions such as manufacturing of goods, sales, etc., used these trademarks in order to identify the types of commercial products as merchandize manufactured by these parties alone, and only the public acknowledgement of the right to use a commercial product was protected, due to the rapid development in recent years of service products, it was determined that existing legislation for protection of other publicly acknowledged rights relating to other roles was no longer sufficient, and the Trademark Law (adopted on April 1, 1992) established the same type of protection as the protection which is applied to merchandize for marks used to identify a service in order to provide identification of the same type of service provided by the same provider for persons offering these services in areas such as broadcasting, finances, the restaurant business, etc.

What we now call the industrial property system is comprised of the four laws relating to industrial property of the Patent Law, the Utility Model Law, the Design Law, and the Trademark Law, which respectively extends protection to patents, utility models, designs and trademarks.

*A telephone set as a practical example

*A fountain pen as a practical example