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Changing Ownership of I.P. Rights in Japan: A General Guideline

Keisen Associates > News > What's New > Changing Ownership of I.P. Rights in Japan: A General Guideline

by Keiko K. Middleton, IP Technical Advisor, and Taro Yaguchi, Japanese Patent Attorney

Outside Japan, the existence of Japan’s strict rules as to the contents of a Certificate of Assignment are not well-known.  The Certificate of Assignment is a document to be filed to record an ownership change of an intellectual property right (patent, trademark, and design, either registered or pending).  For instance, when a Japanese patent or a pending patent application is transferred from one person or entity to another, a properly prepared and executed Certificate of Assignment has to be filed with the Japan Patent Office (JPO) to change the current patent owner or applicant.The steps to follow in order to record a Certificate of Assignment differ from country to country.  In Japan, the JPO imposes strict requirements on the contents of the Certificate of Assignment.  This article is prepared in an attempt to illustrate key elements of those requirements for non-Japanese legal professionals or individuals, who are in need of recording assignments in Japan.  To that end, indicated below is a summary of the key features of an acceptable Certificate of Assignment to be used in Japan.

Strict Rules for Assignments Imposed by the Japan Patent Office

Requirement i: original document.

The Japan Patent Office requires an original , signed Certificate of Assignment to be filed.  A photocopy of an assignment filed abroad cannot be used for submission in Japan.  An exception can be made if the copy is certified by a notary.  In such a case, the copy must state that ”it is a true copy of the original…”

Requirement II: Japanese Patent Number and/or Patent Application Number

A Certificate of Assignment to be filed with the JPO must pertain to a Japanese patent case, with its Japanese patent number or application number clearly indicated.  Without these numbers, the JPO will not accept a Certificate of Assignment.  For your reference, the Japanese numbering system is as follows:Registered Patents:

-NNNNNNN (7-digit serial number)Patent Applications before January 2000: -YY-NNNNNN(YY = Imperial Year; NNNNNNN = a serial number made up of 6 digitsPatent Applications after January 2000: -YYYY-NNNNNN(YYYY = Western Year; NNNNNN = a serial number made up of 6 digits)

Requirement III:  Names and Addresses

A very important, yet little known fact, is that the JPO requires that a Certificate of Assignment include names and addresses of both assignor(s) and assignee(s) in the exact same way and format that match the information on file at the JPO.  In Japan, once an application is filed, the applicant information is recorded with its name and address as indicated on an application.  The JPO, then, issues an Applicant’s ID Number.  The ID number itself does not have to be included in a Certificate of Assignment.  It is, however, necessary to know how the name and address are recorded along with that ID number, so that a Certificate of Assignment can include the names and addresses in a proper manner.If a Certificate of Assignment includes names and addresses in a way inconsistent to the JPO’s record, a Request for Changing a Name/Address has to be filed to resolve the inconsistency.  This will result in extra charges of fees imposed by the JPO as well as a Japanese patent attorney.

Requirement IV:  Power of Attorney

Along with a Certificate of Assignment, a power of attorney has to be filed.  For a pending patent application, a power of attorney from an assignee (new applicant) is required, but not from an assignor (original applicant prior to an assignment), as long as a Certificate of Assignment is signed by the assignor and is available for submission.For a granted patent, a power of attorney from both parties, -the assignor(s) and the assignee(s)-, are required, except where a Consent for Assignment Registration is signed.

Requirement V:  Consent for Assignment Registration

A Consent for Assignment Registration is a document necessary for recordation of the change in a patent ownership in Japan when a power of attorney from an assignor is not available.  Instead of signing a power of attorney, the assignor signs a Certificate of Assignment as well as a Consent for Assignment Registration (they are often prepared as one document), and the signed document is filed by an attorney on behalf of the assignee.This document is required only for patents registered at the JPO, and not necessary for recording an applicant change for a pending application at the JPO. ———————————————————————-

Lastly, it is important to note that, an assignment has legal effect only if it is filed and recorded at the Japan Patent Office (JPO).  In other words, even if an assignment is created and executed in the United States, without preparing, signing, and filing a Certificate of Assignment with the JPO, it has no legal standing in Japan. For more information on filing a Certificate of Assignment, we strongly advise that you retain a Japanese patent attorney. (updated 9/20/2010)

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Protecting IP Ownership and Rights in Japan: 8 Things Employers Need to Know

Jun 8, 2023

Carissa Tham

Table of contents.

Doing business in Japan —a country rich in technology and innovation—presents unique opportunities and challenges, particularly when protecting intellectual property (IP). Japan’s distinctive IP landscape is governed by the Japanese Patent Office (JPO) and embedded in the Japanese government's commitment to fostering innovation.

If you’re a foreign business expanding into Tokyo, Osaka, and other Japanese cities, you must understand Japan’s unique intellectual property rights (IPR) landscape. Without proper attention to these laws, overseas firms can inadvertently expose their precious IP assets to risk. Let’s delve into the complexities of Japanese IP law so employers like you are empowered with crucial knowledge for safeguarding their IP rights in Japan.

Before we move forward, keep in mind that our guide is for informational purposes only—it isn’t intended as legal advice.

1. The scope of intellectual property rights in Japan goes beyond patents

In Japan, IP rights extend beyond patents, encompassing copyrights, trademarks, design rights, utility models, and even protection against unfair competition. These rights are not merely legal jargon. They are the foundation of your business's innovation, making their protection crucial. Ensure your IP agreements cover all these aspects, and be aware of the distinctive laws, such as the copyright law and the trademark act that govern them.

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2. The Japan Patent Office is the principal authority on IP rights in Japan

The Japan Patent Office (JPO) regulates patents, utility models, designs, and trademarks. Aligning with the JPO's guidelines and keeping abreast of any amendments in the patent law or trademark rights can significantly bolster your IP protection strategy. The JPO also assists with international patent applications through the World Intellectual Property Organization (WIPO), helping businesses secure exclusive rights to their innovations globally.

3. Japan runs on a “first-to-file” patent system

Navigating the world of patents in Japan can feel like walking through a maze. The rules are guided by a “first-to-file” system . Therefore, taking swift action is essential in securing your patent rights, including the exclusive right to your patented invention. This system also applies to utility models , which protect smaller, incremental innovations. While they may not seem as grand as patents, utility model rights are vital and often overlooked. They can provide a robust shield for your business's competitive edge. 

It's also worth noting that the Patent Act outlines the detailed provisions and requirements for patent applications. So, it's wise to familiarize yourself with it or seek advice from a local patent attorney to avoid any potential pitfalls.

4. Secure IP rights with IP agreements

Whether it's about an innovative plant variety in the agribusiness sector or a new software algorithm in the telecommunications industry, the foundation of IP protection in Japan is a well-drafted IP agreement . These agreements dictate who—the employee or employer—holds the IP rights. Precision and local relevance are key in these documents. Engaging a Japanese patent attorney for localizing these agreements can significantly fortify your IP protection.

5. The Unfair Competition Prevention Act (UCPA) protects trade secrets in Japan

The Japanese Intellectual Property Law enshrines the protection of trade secrets under the Unfair Competition Prevention Act (UCPA). The act deters the unlawful acquisition, disclosure, and usage of your trade secrets, shielding your business from unfair competition. In Japan, trade secrets are often synonymous with exclusive processes or proprietary knowledge that gives your business a unique edge. 

Whether it's an advanced coding technique or a secret ingredient, incorporating non-disclosure clauses and other protective measures in your IP agreements will enhance your business's safeguarding strategy against unfair competition.

6. Leverage international IP protection mechanisms

International conventions like the Patent Cooperation Treaty and the Paris Convention for the Protection of Industrial Property offer businesses an extended layer of IP protection. These treaties, which Japan is a part of, provide mechanisms for international patent protection and help protect industrial designs. It's prudent to seek professional advice to navigate these conventions and ensure your IP rights are well-protected worldwide.

7. Stay aware of district court and supreme court decisions

Court decisions in Japan can impact the interpretation of IP rights and agreements. District courts adjudicate patent infringement cases, and appeals go to the Intellectual Property High Court . Staying updated with these decisions can provide insights into the evolving landscape of IP law in Japan.

8. Pay special attention to IP in the telecommunications and pharmaceutical sectors

The telecommunications and pharmaceuticals sectors are hotbeds of innovation in Japan . These industries often involve complex considerations of IP protection. For instance, amendments to Japan's patent law provide patent term extensions for pharmaceuticals , preserving the exclusivity of a patentee's rights for a longer period.

In the telecommunications sector, a challenge might arise regarding the patentability of software algorithms, which can involve the principles of the laws of nature, as defined in the Patent Act. For instance, the first instance of an algorithm may not be patentable, but its applications might be. Specialized knowledge of these considerations, perhaps with assistance from IP professionals, can ensure that your IP strategy is tailored and robust in these sectors.

Our team of experts can help you navigate the complexity of Japanese IP law

Frequently asked questions about IP law in Japan

Who owns ip in japan: employee or employer.

Typically, the employer holds the IP rights unless specified otherwise in the employment agreement. However, it's recommended to clarify this in your IP agreements.

What is an IP assignment agreement?

An IP assignment agreement is a legal document that transfers IP rights from one party (assignor) to another (assignee). In Japan, these agreements are often used to assign IP rights from employees to employers.

How does the Patent Cooperation Treaty benefit Japanese businesses?

The Patent Cooperation Treaty allows businesses to seek patent protection for an invention simultaneously in multiple countries. It streamlines the process of filing patents outside Japan.

How does the Paris Convention aid in IP protection in Japan?

The Paris Convention is an international agreement that aids Japanese businesses in seeking IP protection in other member countries, and vice versa. It provides a “right of priority,” enabling businesses to apply for protection in other member countries within a certain period.

What is a utility model, and how does it differ from a patent?

A utility model in Japan is a right granted for inventions of a lesser degree of inventiveness than required for patents. They usually have a shorter protection period but are quicker and less expensive to register.

What is the significance of the Copyright Act in Japan?

The Copyright Act in Japan grants protection to the authors of creative works. This includes not just the economic rights of the author, but also their moral rights, like the right to be identified as the author.

How important is trademark registration in Japan?

In Japan, trademark registration helps businesses secure the exclusive right to use a certain mark, logo, or name, preventing others from using similar ones that could lead to confusion. It's a crucial step in protecting your business identity.

What does the Design Act in Japan cover?

The Design Act in Japan provides protection for the aesthetic aspects of a product. It's essential for businesses that prioritize not just functionality, but also the look and feel of their products.

What happens in the case of patent invalidation?

A patent invalidation in Japan occurs when a patent is declared null and void by the JPO or a court. This typically happens when it's proven that the invention didn't meet the necessary requirements when the patent was granted.

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Japanese Patent FAQs

Change of ownership, assignment, q. what documents are required for recording a change in ownership based on an assignment.

To record a change in ownership, it is necessary to file an assignment document and a power of attorney with the Japanese Patent Office.

The Japanese Patent Office will not accept a photocopy of an assignment document. If you would like to use an assignment document that was used in your country, please provide us with the original assignment document or a certified copy of the assignment document, i.e., a copy of the original accompanied by a notarial certificate stating that the copy is a true copy of the original. In that case, the full address of the assignor and Japanese patent application number (or PCT application number) should be indicated in the assignment document. Otherwise, the Japanese Patent Office will not accept the assignment document.

Q. The full address of the assignor is not indicated in the assignment document and no one is available to sign a new assignment document. What should we do?

In addition to an assignment document and a power of attorney, it is necessary to file a notarized copy of a certificate proving that the assignor had an address at the recorded address in the Japanese Patent Office and that the corporation is identical to the one in the assignment document.

Q. The applicant no longer exists as it became bankrupt. What types of documents are required to record the change of ownership?

If a bankruptcy trustee can sign an assignment document, such an assignment document is acceptable to the Japanese Patent Office. In that case, it is necessary to file a certificate to prove the trustee is a lawful representative for the assignor as well as the assignment document and a power of attorney.

Q. Is there any time period within which an assignment must be recorded?

There is no set time frame for recordation of an assignment.

However, if during prosecution the applicant wishes to file an appeal, a Power of Attorney must be submitted and in order to submit the power of attorney it is necessary to record the assignment.

Further, if your client would like to enforce the patent rights, any change of ownership first must be recorded at the JPO.

We recommend an assignment be recorded at your earliest convenience, since sometimes the original assignment document executed between the parties is insufficient to file with the JPO and we need to obtain a newly signed assignment for recordation purpose.

Q. How long does it take to record an assignment at the JPO?

For issued patents, it takes about two weeks from the date the assignment is filed until it is recorded and about one month until we receive notice thereof from the JPO.

For patent applications, it takes about two months from the date the assignment is filed until it is recorded (the JPO will not issue any notice thereof for patent applications).

Q. Does the JPO issue an official notification when recordation of change of ownership is completed?

For issued patents, the JPO will issue a Notification of Completion of Patent Registration when a transfer of the patent right has been registered at the JPO. Such a confirmation document will not be issued for patent applications.

Q. Does the JPO allow e-signatures for submitted documents, such as assignment documents?

No. Unlike the USPTO, the JPO will not accept legal change of ownership documents utilizing an electronic signature. The signature must be original.

However, the Power of Attorney document can be either an original or an e-signed document (i.e., an electronic signature in the form of “/name/” and a typed date will be accepted in the signature box of the Power of Attorney document). As part of COVID-19 relief measures, the JPO also accepts a Power of Attorney document with no electronic signature (blank signature lines) but with the typed name of the signatory and the date. However, please note that the JPO does not accept a scan of handwritten signature.

Q. If an assignment document is filed with the JPO, will the assignment document become publicly available?

Yes. If an assignment document has been filed with the JPO, anyone will be able to gain access to the information by obtaining the file history through the JPO website or the file wrapper from the JPO database.

Q. Does the JPO accept a “DocuSign” signature and certificate of signature in place of a wet signature (original, printed, and mailed)? We would like to use the platform “DocuSign” to aid in the ease of obtaining inventor signatures.

No. The JPO normally does not accept e-signatures for certificates, such as an assignment document. Accordingly, a document with only the DocuSign signature will not be accepted by the JPO.

Please also refer to the following URLs regarding Assignment and Power of Attorney documents:

https://www.ondatechno.com/en/news/patent/p1347/ https://www.ondatechno.com/en/news/patent/p1303/ https://www.ondatechno.com/en/news/patent/p1272/

Q. Are there any future plans for the Japanese Patent Office to change its position and move toward accepting electronic signatures?

No. The JPO’s website indicates that the JPO will continue to require original documents for procedures that would be highly compromised by forged documents. Therefore, it is unlikely e-signatures for certificates will be accepted by the JPO in near future.

Q. There was a succession of the right to obtain a patent after a Decision of Rejection has been issued, and the applicant is considering filing an Appeal. When should the change of ownership be recorded with the JPO?

If the Assignee files an Appeal, the ownership change should be recorded on or before the date the Appeal is filed.

However, if an Appeal is filed under the name of the Assignor (i.e., before recording the change of the ownership), a Power of Attorney from the Assignor must be filed with the JPO. Otherwise, the Appeal will be rejected.

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Phone: 81-58-265-9124 [english].

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Intellectual Property Transactions: Japan Overview

JAPAN TRADEMARK REVIEW

Latest news & updates for trademarks in japan, transferring trademark ownership in japan.

Posted By: Masaki MIKAMI 02/27/2021

Trademark owners can freely sell their trademark or transfer it without any compensation. Transfers of trademark ownership happen when the owner of trademark rights is changed. Examples of when transfers of trademark rights might happen include when a company is buying another company, or when a business buys product rights from another company or individual.

Deed of Assignment

A deed of assignment is used where the trademark owner (the “assignor”) transfers all or part of their right, title, and interest in a trademark to another entity (the “assignee”). A deed of assignment can be done in one transaction, by transferring all ownership rights of trademarks detailed in the deed. No payment is required for it to be valid.

A deed of assignment must be in writing and should include:

• The names and addresses of the assignor and assignee
• A description of the trademark right, i.e., Japanese trademark registration number to be transferred
• A statement that the assignor transfers the trademark right to the assignee
• Seals/Signatures of the parties and the date of the agreement execution

Recording Trademark Assignment

Although a deed of assignment transfers ownership in trademark right, it does not change the registration of the ownership. To be valid and enforced, the trademark assignment must be recorded with the Japan Patent Office (“JPO”). The parties must submit a deed of trademark assignment along with a statutory request to change the ownership.

Joint Application Rule

It is noteworthy that  the Japanese law provides the request to change trademark ownership with the JPO should be applied jointly by assignor and assignee  even though assignor agrees to assign their interest in the property to the assignee in the deed.

Consequently, mere signatures of both parties on the deed of the assignment are insufficient to meet this requirement.

To record the assignment of trademark registration with the JPO requested solely in the name of the assignee, which often happens, as a matter of fact,  the deed should contain a declaration that the assignor would agree and never oppose assignee to solely request the transfer of trademark right with the JPO.  (Article 8 of Japan Trademark Registration Order)

It is mandatory to pay an official fee,  JPY30,000 per registration  in order to register the change in ownership with the JPO.

Meanwhile, where the transfer arises from general succession, e.g., inheritance, M&A, it costs JPY3,000 per registration.

Masaki MIKAMI, Attorney at IP LAW – Founder of  MARKS IP LAW FIRM

Intellectual property and technology

Intellectual property rights including patent right, utility model right, design right, copyright, trademark right and trade secrets are specified and protected under each relevant intellectual property law.

Last modified 29 Jun 2023

Contracts including commercial contracts are interpreted and enforced in accordance with the Civil Code (Act No. 89 of 1986), any other related laws, specified rules and regulations such as the Commercial Code (Act No. 48 of 1899) and court precedents.

Nature of right

Legal framework, duration of right, ownership / licenses, remedies for infringement.

Works created by an author are protected subject to certain exceptions specified in the Copyright Act, such as private use, citations and school text book use. "Works" means a production in which thoughts or sentiments are creatively expressed and which falls within the literary, academic, artistic or musical domain.

No fixation to a tangible medium (except for movies) or registration is required.

The copyright arises and is protected from the moment of creation.

Copyright owners have the exclusive right to reproduce, publicly perform, screen, transmit, recite, exhibit or distribute, transfer, lend reproductions, translate, adapt the work and use derivative works.

Moral rights of an author and neighboring rights are recognized under the Copyright Act.

The Copyright Act (Act No. 48 of 1970) (the Copyright Act) governs copyrights.

Japan became signatory to Berne Convention in 1899, to Universal Copyright Convention in 1956, International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations in 1989, Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms in 1978, Agreement on Trade-Related Aspects of Intellectual Property Rights in 1994, World Intellectual Property Organization Copyright Treaty in 2000 and World Intellectual Property Organization Performances and Phonograms Treaty in 2002.

Copyright protection lasts for the life of the author plus an additional 70 years. Some special calculations are applicable for copyrightable works made before or during the Second World War.

For an anonymous work or a pseudonymous work, the copyright lasts for a term of 70 years from its first publication, or a term of 70 years from the death of the author if the author is known, whichever expires first.

For a work owned by an entity ( eg , work made for hire), the copyright lasts for a term of 70 years from the work's first publication. If it is not made public within the 70-year term, the copyright lasts for 70 years after the creation.

If a work is a movie, its copyright endures for a term of 70 years from its first publication. If the movie is not made public, the copyright lasts for 70 years after the creation of the movie.

Exercise of a jointly owned copyright requires consent from the other joint owner(s) of the copyright. However, each joint owner cannot withhold consent without reasonable grounds.

Exclusive and non-exclusive licenses, as well as transfer of copyright are recognized. Moral rights are not transferrable and not waivable.

No registration is required to seek remedies for infringement.

Monetary damages can be compensated. There are certain statutory presumptions to calculate damages but punitive damages are not available under Japanese law.

Injunctive relief, including seeking/preventing importation of infringing goods, is available as a remedy.

For moral rights, measures to correct and restore the honor and reputation of the author or performer are available ( eg , publishing an apology in a newspaper).

Each joint owner can seek a remedy without the other owner's consent.

Criminal penalties are possible for infringement of copyright.

The layout-design of semiconductor integrated circuits is protected.

A semiconductor integrated circuit means a product having transistors or other circuitry elements inseparably formed on the surface of a semiconductor material or an insulating material, or within a semiconductor material and designed to perform electronic circuitry functions.

Layout-design means a layout of circuitry elements in semiconductor integrated circuits and the lead wires connecting such elements.

Registration with the Software Information Center is required.

Owners have the exclusive right to manufacture, transfer, lease, display or import a semiconductor in which mask work is embodied for business.

An owner cannot assert its right against the same mask work that was independently developed.

The Act on the Circuit Layout of a Semiconductor Integrated Circuits (Act No. 43 of 1985) governs the protection of layout-designs of semiconductors.

The duration of protection is 10 years from registration, and no renewal or extension of duration is provided. The layout-design must be registered within 2 years of first commercial exploitation.

If 2 or more persons jointly develop a mask work, all of them must jointly apply for registration.

Exclusive and non-exclusive licenses and transfers of mask works are recognized.

Joint ownership is permissible. Exclusive or non-exclusive licensing of the mask work, transferring or establishing pledge on the share of the mask work requires consent from all joint owners of the right.

Each joint owner can seek a remedy without the other owner’s consent.

Criminal penalties are possible for infringement of mask works.

Japanese law protects inventions (the highly advanced creation of technical ideas utilizing the laws of nature), utility models (the creation of technical ideas utilizing the laws of nature), and designs (shapes, patterns or colors, or any combination of these of an article having visual aesthetic attributes), and plant varieties.

A patent holder has the exclusive right to produce, use, transfer, sell, lease, offer for sale or lease, export or import the patented invention for business.

For utility and design patents and utility model rights, registration with the Japan Patent Office is required.

Inventions are protected by the Patent Act. (Act No. 121 of 1959).

Japan joined the Patent Cooperation Treaty in 1978 and Paris Convention in 1899.

Utility models are protected by the Utility Model Act (Act No. 123 of 1959).

Designs are protected by the Design Act (Act No. 125 of 1959).

For invention patents, the duration of protection is 20 years from filing date of application and up to 5 years extension, subject to certain requirements.

For utility model patents, the duration of protection is 10 years from application. No extension is available.

For design patents, the duration of protection is 25 years from filing date of application. No extension is available.

Exclusive and non-exclusive licenses and transfers of patent rights are recognized.

Joint ownership is permissible. Exclusive or non-exclusive licensing of the patent right, transferring or establishing pledge on the share of the patent right requires consent from all joint owners of the patent right.

Monetary damages can be levied. There are certain statutory presumptions to calculate damages but punitive damages are not available under Japanese law.

Measures are available to restore the business reputation of the patent holder and exclusive licensee ( eg , publishing an apology in a newspaper).

Each joint owner can seek a remedy for infringement without the other owner's consent.

Criminal penalties are possible for patent infringement.

A trademark means any letter(s), figure(s), sign(s), 3-dimensional shape(s), or any combination of these, or color(s), or any combination of these, or sound(s) and other certain item(s) which identifies and distinguishes the source of the goods or services from those of others.

A trademark holder has the exclusive right to use the trademark for the product or service.

Registration with the Japan Patent Office is required.

The Trademark Act (Act No. 127 of 1959) governs trademarks.

Japan joined the Madrid Protocol in 2000.

Japan joined the Trademark Law Treaty in 1997.

The duration of protection is 10 years from registration and renewable every 10 years.

Exclusive and non-exclusive licenses and transfers of trademark are recognized.

Joint ownership is permissible. Exclusive or non-exclusive licensing of the trademark, transferring or establishing pledge on the share of the trademark requires consent from all joint owners of the trademark.

Measures are available to restore the business reputation of the trademark holder and exclusive licensee ( eg , publishing an apology in a newspaper).

Criminal penalties are possible for trademark infringement.

Illicit obtainment of trade secrets and use and disclosure of trade secrets for unjustified purposes are regulated under the Unfair Competition Prevention Act (UCPA)(Act No. 47 of 1993).

The UCPA defines trade secrets under a 3-prong test:

• Information is "technical or business information useful for business activities such as manufacturing or marketing methods"
• Information is "managed as a secret" and
• Information is "not publicly known."

The UCPA is the main governing law regarding trade secrets. The UCPA does not require any registration or filing of trade secrets to protect them.

There is no specific duration of right or protection period of time under the UCPA. As long as a trade secret falls under a trade secret defined under the UCPA, it will be protected as such by the UCPA.

The UCPA is silent on joint ownership of and licensing of trade secrets. As long as these do not undermine trade secrets to meet the 3-prong test, the trade secrets will be still protected.

Monetary damages can be levied. There are certain statutory presumptions to calculate damages but punitive damages are not available.

Injunctive relief is available as a remedy.

Criminal penalties are available for theft and use of trade secrets.

Not applicable for this jurisdiction.

Consultants / contractors

The "work for hire" doctrine is applicable to copyrights and mask works. The doctrine is also applicable to patents as long as it is agreed in the work rules or employment agreement that the work for hire patents are inherently owned by the employer in advance. Employees must be reasonably compensated by an employer for the work for hire patents, patent assignments or grant of an exclusive license. The law does not provide the compensation figures but certain factors to be taken into consideration are provided and the amount must be reasonable. For copyrights, a work must be made public under the name of an employer except for computer program related copyrights.

Even if an employer did not provide that patents created by employees are inherently owned by the employer from the moment of their creation in the work rules or employment agreement, statutes give an employer a right that is similar to a shop right within the scope of a non-exclusive license. This only applies to patents.

In practice, consultants and contractors are often required to sign written agreements to assign all intellectual property related to their work for the company. Some courts have applied the concepts mentioned in " Employees " section above to consultants and contractors given the fact that relationship was an employment relationship due to misclassification ( ie , disguised service/independent contractor agreement). It is recommended that written contracts expressly assign all intellectual property to the company retaining the consultant/contractor.

Registration of commercial agreements

Recognized language of commercial agreements, country-specific issues for online content, enforceability of online/clickwrap/shrinkwrap terms.

Governing law

There is no general registration requirement for commercial contracts. Material contracts of publicly-traded companies may require limited disclosure.

Patent license or trademark license for statutory exclusivity requires registration to be enforceable. Registration of non-exclusive licenses for trademarks is possible in order to put potential buyers of the trademarks on notice of the license. Such registration is, however, not required.

Registration of copyright licenses is not available in Japan, although transfer or assignment of copyrights can be registered to assert such assigned rights against third parties.

Japanese language is used for consumer-facing commercial agreements though it is not mandatory for a contract to be enforceable. In business transactions, English agreements are not common but they are enforceable.

Does not apply for this jurisdiction.

Online terms are generally considered enforceable if conspicuous and users have an opportunity to review terms in advance.

Under the Civil Code, terms of service or use would fall under the definition of the adhesion contract (i.e. template terms and conditions prepared by one party for agreements between unspecified counterparties which is expected to be used without variation). To have an adhesion contract legally binding, consents from counterparties to execute the adhesion contract is necessary. In addition, to amend adhesion contracts, the content of the amendment must be (i) beneficial for the counterparties or (ii) consistent with the original intention of the adhesion contract and its underlying rationale (several factors will be considered in making this determination), or the party shall get consents from counterparties.

The Electronic Contract Act (Act No. 95 of 2001) allows a consumer who had erroneous operation of a computer ( eg , accidental click) to cancel the contract if the company does not take appropriate measures ( eg , easily understandable order confirmation display) for the consumer to reconfirm the details of the order before the final click.

Choice of governing law and venue for resolution of disputes specified in a contract is generally accepted and recognized by courts in Japan.

It should be noted that under Japanese conflict law, in consumer contracts, a consumer may require additional application of the law of the consumer's residence in addition to agreed governing law.

Enforceability of warranty disclaimers

Enforceability of exclusions/limitations of liability indemnification, indemnification, electronic signatures.

Warranty disclaimers are generally enforceable unless sellers are aware of a defect in the product(s) at the time of sale.

For disclaimers against consumers, even if the seller is not aware of a defect in the product(s) at the time of sale, comprehensive disclaimers are not enforceable under the Consumer Contract Act (CCA) (Act No. 61 of 2000).

Exclusions and limitations of liability are usually enforceable unless they are grossly unfair. In consumer contracts, full exclusions or partial exclusions in case of gross negligence or willful misconduct are unenforceable under the CCA.

The concept of indemnification does not exist under Japanese law. Instead, a contract party will be entitled to certain remedies upon breach of contract, such as damage claims and specific performance. Separately, damage claims are also available in tort cases.

Either in contract or in tort, if a party seeking compensation for monetary damages was also negligent, a Japanese Court may consider reducing damages under the concept of comparative negligence.

Act No. 102 as of 2000 on Electronic Signatures and Certification Business (Act) provides details regarding the enforceability of electronic signatures of individuals. Under the Act, documents with electronic signatures that meet certain requirements are acknowledged as authentically created by the signatories and are admissible as evidence in civil litigation. Electronic signatures are also available for corporations. Electronic signatures have been used in both public and private sectors in Japan, such as tax filings, biddings and commercial transactions.

Lance Miller

Tomomi Fujikouge 

Mitsuhiro Imamura

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Patents - Filing Requirements

• Description, claims, drawings (if necessary), and abstract in English language.
• No documents are required.
• Power of attorney signed by the assignee.
• Deed of assignment document signed by the assignor and assignee.
• Late filing of documents: not allowed.
• Power of attorney simply signed.
• Merger agreement document signed by both parties.
• Power of attorney reflecting the new name or address simply signed.
• Certified copy of the certificate of incorporation or an extract from the commercial register reflecting the change.
• Power of attorney signed by the licensee.
• License agreement document signed by both parties.
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• Apply for a Japanese patent
• Apply for a Japanese design right  (equivalent to a U.S. design patent)
• Apply for a Japanese trademark

Japan is a party to various intellectual property (IP) treaties and a member state of the World Intellectual Property Organization (WIPO). In addition, its national IP office, Japan Patent Office (JPO), participates in various worksharing and other cooperative programs with the USPTO. Below are helpful resources with information about Japan's participation in these treaties and programs. 

Treaties that help facilitate IP filings

The Patent Cooperation Treaty (PCT) is an international agreement, which makes it possible to request patent protection in multiple countries through the filing of a single “international” patent application. Japan, like other Contracting States, has particular requirements for obtaining a patent in its territory through the PCT. For example, most business by non-residents must be conducted by an appointed representative residing or domiciled in Japan, except for the transmittal form initiating entry into the national phase. For more information, see JPO's PCT FAQ and the WIPO  National Phase PCT Applicant's Guide for Japan .

Japan is a Contracting State to the Hague Agreement . The Hague Agreement offers the possibility of obtaining protection for up to 100 industrial designs in designated member countries and intergovernmental organizations by filing a single international application in a single language. For more information, see JPO's  Notes for the Designation of Japan in an International Design Application .

A trademark owner may be able to use its USPTO trademark application or registration as the basis for obtaining trademark protection in Japan through the Madrid Protocol . Visit WIPO to file an international application . For more information, see the JPO's Extension of Protection to Japan under the Madrid Protocol  webpage.

Worksharing and other cooperative arrangements

The USPTO participates with the JPO in the Global Patent Prosecution Highway . When an applicant receives a final ruling from the USPTO that at least one claim is allowed, the applicant can request fast track examination of corresponding claim(s) in a corresponding patent application that is pending at JPO, and vice-versa. To request accelerated prosecution of a Japanese patent application based on an allowable claim at the USPTO or another IP office, visit JPO's PPH Guidelines and Request form  webpage.

The Collaborative Search Pilot (CSP) provides applicants who cross-file their U.S. patent applications with Japan with search results from both offices early in the examination process. It is designed to accelerate examination and provide the applicant with more comprehensive prior art by combining the search expertise of examiners at both offices before issuing a first office action. Benefits include:

• Greater consistency across offices,
• Expedited examination, and
• More comprehensive prior art.

For more information, see the USPTO's CSP webpage or the JPO's CSP webpage .

The USPTO and JPO participate in WIPO Digital Access Service (DAS), which allows the free, electronic transmission of certain filing documents between IP offices. It automates the provision of priority documents to offices of second filing, which is generally required to obtain the “right of priority” under the Paris Convention. For more information, see JPO’s Electronic Exchange of Priority Document Data with the USPTO webpage.

Global Dossier is a tool that allows applicants to view information, at a single location, about patent “family” member applications that are pending in different IP offices. Japanese patent application search and examination documents can be viewed through  Global Dossier . See the USPTO's Global Dossier webpage  for more information.

One critical component of any application to register a trademark is the identification of goods and services (the “ID”). The ID enumerates the goods and/or services on which, or in connection with which, that trademark is used. Trademark offices in different countries may have different standards as to which sorts of IDs are acceptable for inclusion in an application. As a result, trademark owners who want to obtain protection for the same trademark in multiple countries potentially have to create unique IDs for each of them. To lessen that burden, the USPTO leads an ongoing effort, in cooperation with its counterparts in the Trademark Five or “TM5” forum, including the JPO, to maintain a pre-written “pick list” of IDs (the TM5 ID List ) that will be accepted in the trademark offices of numerous countries, including JPO. IDs that are included in the TM5 ID List have a “T” in the TM5 column in the  USPTO's Trademark ID Manual .

Use the below interactive map to learn more about IP protection in the highlighted countries/regions.

Additional information about this page

An Introduction to Filing Patents in Japan

W elcome to KIPB’s Resources section for anyone considering filing patent applications in Japan. This resource provides a basic overview of the patent prosecution process before and after filing in Japan as well as useful information on topics that are most pertinent to overseas applicants. 

For further explanations , please visit our Patent System Q&A section for easily accessible answers to many of the most commonly asked questions from our international clients. We hope you find this to be a useful reference tool. If you do not find the answer you are looking for, or you have more case-specific questions, please feel free to contact us at any time, and we’ll be happy to assist.

Click on the topics below for more details.

Options for international applicants filing into Japan

Most patent applications filed by overseas applicants into Japan are based on domestic patent applications that have already been filed at the national patent office in the applicant’s home country, such as the US Patent and Trademark Office or the UK Intellectual Property Office. 

Overseas applicants into Japan can choose one of two filing routes for this procedure - the PCT Route  or Paris Convention Route .

The Patent Cooperation Treaty (PCT)  is an international treaty signed by over 150 member States. It allows applicants to file a single international patent application covering all of these States which, for a certain period of time, takes the place of each of the separate foreign patent applications that would otherwise be required for protection abroad. 

The PCT filing route includes two basic stages (phases) – the international phase and the subsequent national phase . 

At the international phase , an applicant files a single international patent application based on the domestic "priority" application filed in their own country. International patent applications should be filed within one year from the filing date of the domestic application They are thus counted as having the same filing date as the domestic application (or "priority date"). Priority dates are extremely important in determining patent rights.

At the subsequent national phase , the applicant selects which specific countries they wish to file their international application in. At the deadline for filing at the national phase, the international application converts into separate "national" (domestic) applications according to the countries selected. These applications are thereafter prosecuted individually according to the IP laws in each country.

The time frame for the PCT application process is as follows:

The Paris Convention is an agreement on industrial property rights between 177 contracting member countries. It guarantees that when an overseas applicant files an IP application in another member country, the application receives the same treatment as if the application was filed by a national of this member country.

The Paris route allows overseas applicants to file applications in individual countries directly, and in non-PCT treaty countries like Taiwan (at time of writing). Effectively, applicants file an application in their own country from which they can claim priority as per the PCT route (see above). Then, instead of filing a single international PCT application within a year, applicants apply separately to individual countries such as Japan. As long as the application is filed in Japan within one year from the filing date of the corresponding domestic application it is counted as having the same filing date (or “priority date”). Priority dates are extremely important in determining patent rights.

There are advantages and disadvantages to both filing routes depending on the applicant's particular requirements. The PCT route generally gives an applicant more time and options  in deciding which countries to file in. However, the Paris Route generally offers more costs savings and flexibility  for applicants who want to file in fewer, specific countries, and obtaining a patent is usually quicker.

The KIPB Team can help you decide which route is better for you to take. Contact us at any time.

If you would like more information on how to use the two systems before applications reach the filing stage in Japan, please see the following explanations provided by the World Intellectual Property Organization (WIPO):

After your application has entered Japan

Once you have filed your patent application in your own country and have selected Japan as a country you wish to file in - via either the PCT or Paris filing routes and according to the legal time frames - your application moves into the domestic filing stage in Japan. We provide an overview of the prosecution of your application in Japan below – from filing to patent grant and beyond.

Again, please also see our Patent System Q&A for specific details. The KIPB Team are very happy to provide any explanations and advice upon request. Contact us at any time.

• If the application is filed in a foreign language application (English), it is necessary to submit a Japanese translation within 2 months of filing or within 14 months of the priority date.
• The JPO officially stated policy is to examine an application within 9-10 months from the Request for Examination.  This is the shortest turnaround amongst all major patent countries.
• A Final Decision of Rejection is often issued after the first or second Notice of Rejection. 
• Amendments are optional at the Appeal stage. 
• If none are made, the application goes straight to the Trial by the Appeal Board (typically 3 or 5 new examiners).  
• If amendments are made, the existing Examiner will perform a pretrial examination and either issue an allowance or provide recommendations to the Appeal Board. If the case goes back to the Appeal board, the appeal trial proper begins, at which the Appeal Board will issue: 

i) an Allowance (overturning the previous Decision), or 

ii) a Decision to reject, or 

iii) a discretionary Notice of rejection which may give the applicant the opportunity to make a further response/amendment into an allowable condition.

For PCT applications an applicant has 30 months from the date of filing their domestic priority application (i.e., the application in their own country) to decide whether to enter a particular country’s national phase. 

For Paris route applications, filing is within 1 year of the priority application. 

To enter the PCT national phase in Japan an applicant needs to provide the following documents.

• Patent specification, claims and drawings;
• The front page of the international WIPO Publication;
• Any amendments under PCT article 19(1) and/or 34(2) (if any); and
• A copy of the International Preliminary Examination Report.

These must be filed by the 30-month priority claim deadline.

Japanese translations can be provided within 2 months from the date of Japan national phase entry.

The following documents are required to file a Japanese patent application using the Paris Route (and maintain priority claim):

• Patent specification, claims, drawings and abstract;
• Full name, address and nationality of each inventor;
• Full name, address and nationality of each applicant and their identification number at the JPO (if they have one)
• The filing date of each priority application;
• The application number of each priority application (if available); and
• The priority documents including the country filed (filed within 16 months from the priority date). 

Paris route applications can be filed in languages other than Japanese initially (English being the most common), in which case a Japanese translation should be provided within 1 year and 4 months from the earliest priority date.

--------------------

Application number and Applicant ID

Applications are issued with an initial application number on the day of filing (Paris route and domestic filings) or soon thereafter (PCT).

Applicants will also be given a general applicant ID number if they haven’t already received one for a previous application (ID numbers are useful when an applicant’s name / address changes for example - the change being applied to the ID number and automatically applicable to all pending cases.) 

No power of attorney (POA) is required at this stage for PCT or Paris route applications. POAs are only required for special circumstances later on in the prosecution such as at the time of an Appeal or Opposition, or to record a name change, etc. 

The KIPB Team can provide advice on these documents and can provide the necessary Japanese translations from any language. Contact us at any time.

Japanese translations should be provided within 30 months from the first priority date of the PCT application or within 2 months from the date of national phase entry into Japan (whichever is the later date).

The translation must be exactly the same as the content in the original PCT document with no new matter added.  Amendments that are supported by the content in the original can subsequently be made freely to claims up until a first office action is issued (and thereafter, if the office action is not "Final".) We usually recommend filing any claim amendments with the request for examination (below) since examination fees depend on claim numbers.

We can currently file in any language to maintain the priority date (which is 1 year before the Japanese application deadline) and subsequently provide a Japanese translation within 16 months from the priority date.

Amendments can subsequently be made in the same manner/time frame as for PCT applications above.

Note that it is common to file both PCT and Paris route applications in a foreign language in Japan and then have them translated.  This gives the applicant a certain amount of leeway with respect to how Japanese translations conform to the original application –i.e., you can amend errors/support in the translation if this falls within the scope of the original foreign language document.

The KIPB Team are fully set up to provide timely and accurate translations in-house by our experienced IP specialists.   Contact us for details.

After a certain period of time, applications are published  in the JPO's Patent Gazette and on the JPO online database J-PlatPat, and given a  publication number.   

Domestic and Paris Convention filings are published 18 months after filing.  PCT applications entering the Japan national phase are published about 7-8 months after their Japanese translations have been submitted (which is within two months of national entry.)  

Applications are searchable by other parties at this point, and anyone can submit prior art that may be of relevance during the subsequent examination.

The next important milestone for the patent prosecution timeline is the applicant’s obligation to request examination. 

A Request for Examination must be filed within 3 years from the international PCT filing date.

A Request for Examination must be filed within 3 years from the date of filing in Japan.

Accelerated Examination

The examination process to first office action can be accelerated in a number of ways when Requesting Examination provided certain conditions are met (for example, the Japanese application has a corresponding application filed elsewhere). 

Standard examination to first JPO response usually takes around 9 or 10 months (as of Oct. 2020) before the first response from a Japan patent examiner. Whilst this is the quickest turnaround time of any major patent jurisdiction, requesting any form of accelerated examination reduces this period still further to around 2 to 3 months.

After a Request for Examination, an Examiner will be assigned to the application and he/she will issue a Notice to Reject or allow the application – the latter much rarer straight off (a so-called "Office Action"). Rejection is usually not the end of your application, rather it represents a chance to clarify your invention or differentiate it from existing patents. There are various reasons an Examiner might issue a rejection, some main ones including lack of: 

• (i) industrial applicability, 
• (ii) clarity, 
• (iii) novelty or inventive step over the prior art, 
• (iv) support in the description, or 
• (v) enablement from the description.

Types of Office Action

Notice of Rejection

The first judgment on the patentability of an application is usually a "Notice of Rejection".  A "first" office action allows the applicant to amend claims feely in response (within the scope of the disclosure). An applicant has 3 months to respond (extendable for a small fee in case of foreign applicants)

"Final" Notice of Rejection

If a new reason for rejection is found due to the amendments made by the applicant in response to the "first" Notice of Rejection above, a "final" Notice of Rejection may be issued. Subsequent scope for amendments is much more limited in this case (i.e., to limiting, cancelling, correcting or clarifying claims.)

Decision of Rejection

An amendment/argument in response to the above Notices of Rejection that fails to convince the examiner will result in a Decision of Rejection. An applicant's options, in this case, are to file an Appeal and/or a Divisional application (within 4 months of the decision, for cases filed after 31 March 2007.)  Amendments are optional for an Appeal but again are limited in scope. 

Notice of Allowance (Decision to Grant)

When an examiner finds no reason to reject an application, he/she decides to grant a patent. In this case, the applicant must pay a registration fee within 30 days of the grant decision in order to obtain the patent right (and certificate of patent). The applicant may also file divisional applications within this period

Voluntary amendments can be made to the claims, drawings and text at any time before a first office action and within the period for responding to an office action. They can also be filed with an Appeal. Amendments in response to non-final office actions are unrestricted in scope (provided they are properly supported by language in the description of the application). After that, the amendment scope is much more restricted.

Divisional applications give an applicant more time to consider their claim options.  They allow rejected/cancelled claims to be kept alive or for the applicant to pursue a different technical feature or embodiment that is supported but not claimed in the original application.  

There are ample time periods when a divisional can be filed, but some restrictions. See our Patent System Q&A for details.

An applicant can challenge a Decision of Rejection by requesting an Appeal. A board of 3 new examiners will be appointed to review the Decision. Amendments are optional, but if made, the original examiner will examine them once again before the actual Appeal and grant or issue his/her recommendations to the Appeal board.  

If the Appeal is rejected the applicant has the option of submitting a complaint about the correctness of the appeal procedure to the Japanese IP High Court within 30 days.

After allowance, an application will be published in the Patent Register/Gazette once a registration fee is paid within 30 days of allowance. It will be given a patent number and a Certificate of Patent will be issued to the applicant. The patent remains valid for 20 years provided regular annuity fees are paid. Except for certain pharmaceutical and agricultural-based patents, these terms cannot be adjusted.

Divisional can also be filed before payment of the registration fee (provided the application has not been granted via an Appeal.)

Registration is often not the end of the prosecution of a patent. The patent holder may want to license the rights to a third party.  The patent may also be challenged by other parties with similar inventions, or it may be infringed upon by similar or later products or technologies which do not have permission to do so. A brief overview follows:

Any third party can file “oppositions” within six months from the publication of a patent in the Patent Gazette. The grounds for opposition are similar to those in an office action and are provided in writing by the opponent. The opposition will be considered by a board of three examiners and if they find the arguments valid, the patent holder will be given the opportunity to amend as per the restrictions in a Final Office Action.  

INVALIDATION

A third party with a ‘commercial interest’ in the technology pertaining to a patent may request a trial for invalidation at any time during the patent’s life. Grounds are similar to those in an office action. The trial is an inter partes procedure that is heard by an appeal board. If they find the invalidation request has merit, the patent holder is given a chance to correct/clarify/limit claims by amendment to cancel the invalidation. 

TRIAL FOR CORRECTION

A patent holder (only) can request a trial for correction (sometimes called “trial for re-examination) to correct/clarify patented claims, etc. They might do this if they anticipate their registered claims etc. are at risk of being invalidated, or if errors - including translation errors - are discovered. Corrections of patented claims can also be made when an Invalidation Trial is demanded by a third party (the patent holder cannot request a separate correction trial during this period). Acceptable amendments can only restrict the scope of claims, not broaden; and should remain within the scope of the original disclosure.

LICENSING AND INFRINGEMENT

The patent can then optionally be monetized via a licensing agreement. The patent right holder or licensee may also seek injunctions or compensation for damages when somebody else infringes their exclusive or licensed rights to use the patent.

Opening a world of opportunity.

Quick links, ip law services, +81-3-6433-7507, [email protected].

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An International Guide to Patent Case Management for Judges

7.6 judicial patent proceedings and case management.

This section sets out the process for seeking an injunction against, or damages for, an alleged infringement of a patent right, with a particular focus on the district court process. It addresses jurisdiction and case assignment; conciliation; the two-stage district court process for assessing infringement and damages; provisional dispositions (preliminary injunctions); and discovery and appeal. This section also outlines the remedies a patentee may seek when a person infringes or is likely to infringe a patent right, including an injunction, damages, measures to restore credibility and the return of unjust enrichment.

The IP divisions of the Tokyo District Court and the Osaka District Court adopt the following two-stage process for patent infringement lawsuits:

• 1. infringement determination stage – the court determines whether a patent has been infringed (including the validity of a patent); and
• 2. damages determination stage – if the court finds that infringement has occurred, a second stage is conducted to determine the amount of damages.

Figure 7.10 provides an overview of the patent infringement lawsuit litigation process.

The IP divisions of the Tokyo District Court and the Osaka District Court have published the following guidelines on the two-stage infringement lawsuit process in English:

• Proceedings Model for Patent Infringement Suit (Stage for Examination on Infringement) (Tokyo District Court);
• Proceedings Model for Patent Infringement Suit (Stage for Examination on Damages) (Tokyo District Court);
• Flow of Procedures for a Patent/Utility Model Right Infringement Suit (Osaka District Court); and
• Instructions for Proceedings of the Stage for Examination on Damages (Osaka District Court). 232

7.6.1 Jurisdiction and case assignment

As noted in Section 7.3 , the Tokyo District Court or the Osaka District Court handles first instances of civil lawsuits for an alleged infringement of a patent. 233 Patent infringement cases are assigned to panels of the IP divisions of the district courts according to the order in which they are filed. Civil Divisions 29, 40, 46 and 47 of the Tokyo District Court and Civil Divisions 21 and 26 of the Osaka District Court specialize in IP infringement proceedings.

A panel of three judges will usually hear patent infringement cases. Fact-finding does not involve jurors and is conducted by judges. However, judicial research officials – examiners seconded from the JPO, or patent attorneys – are assigned to assist district court judges with technical matters.

Any appeal against a district court decision in a patent infringement lawsuit is under the exclusive jurisdiction of the IP High Court. 234 A party that is dissatisfied with a decision of the IP High Court may file a final appeal or a petition for the acceptance of a final appeal to the Supreme Court. 235

7.6.2 Statements of case (complaint and answer)

On the first date for oral argument, the plaintiff will present the complaint, and the defendant will present an answer. The answer should outline the arguments that the defendant intends to present, including:

• identification of the alleged infringing product or process and a description of its composition;
• admission or denial of the assertions made in the complaint; and
• the defense of patent invalidity. 236

The parties should submit basic documentary evidence – for example, the patent register, the patent gazette or a pamphlet describing the defendant’s product – along with a description of the evidence.

7.6.3 Early case management (preparatory proceedings)

In most cases, after the first date for oral argument, the court refers the case to preparatory proceedings to identify and organize the issues and evidence. The presiding judge and another judge from the three-judge panel will conduct the preparatory proceedings during which the parties will present their detailed arguments.

On the first or second date of the preparatory proceedings, the court and the parties will confirm the issues in dispute and may decide a schedule for the proceedings. Depending on the arguments made on each date of the proceedings, the court and the parties may adjust the schedule or discuss what the parties should prepare for the next date for proceedings.

During preparatory proceedings, according to Article 104-2 of Patent Act, when the defendant denies the description of the allegedly infringing products or process described by the plaintiff in the complaint, the defendant should present a description of those products or process prepared by the defendant. Based on this description, the defendant will present a brief that includes arguments as to whether the alleged infringing product or process falls within the technical scope of the patented invention. If the defendant argues a defense of patent invalidity, the defendant will present a brief outlining the defense based on an investigation of publicly known prior art documents and should also submit any other relevant and necessary documentary evidence in its possession.

The plaintiff will also present a brief that outlines the plaintiff’s arguments against the defendant’s denial of infringement in terms of the technical scope of the patented invention, as well as any defense of patent invalidity (including the defense of correction), and will also submit any necessary documentary evidence to support its assertions.

On the third date of preparatory proceedings, the defendant will present another brief to counter the plaintiff’s allegation made at the previous day of preparatory proceedings regarding the technical scope of the patented invention. The defendant may also provide supplementary material relevant to the defense of patent invalidity.

On the fourth date of preparatory proceedings, the plaintiff will present briefs that outline any supplementary arguments with respect to the defense of patent invalidity. At this stage, the key arguments on infringement, including the validity of the patent and their proof, will be completed.

7.6.4 Provisional measures (preliminary injunction against patent infringement)

Article 23(2) of the Civil Provisional Remedies Act provides for a provisional disposition (preliminary injunction) to prohibit the supply of goods or services that infringe a patent right, in addition to a permanent injunction issued in an infringement action based on the merits. 237 Article 23(2) provides that a preliminary injunction may be issued “when such status is necessary in order to avoid any substantial damage or imminent danger that would occur to” the patentee with respect to “the relationship of rights in dispute.”

If a patentee is successful in an infringement action on the merits, the court will permit the patentee to exercise the right to:

• stop the infringing activities; 238
• demand the disposal of infringing products; 239
• demand compensation for damages; 240 and
• demand measures to restore the patentee’s reputation. 241

However, in the case of a preliminary injunction against patent infringement, only the following remedies are permitted:

• an injunction against the infringing activities; and
• the retention of the infringing products by the court enforcement officer for the purpose of ensuring the disposal of the infringing products upon obtaining a final judgment. 242

Article 24 of the Civil Provisional Remedies Act provides the following:

In order to achieve the objective of a petition for an order of provisional disposition, the court may issue a disposition ordering the [respondent (alleged infringer)] to take or prohibit from taking certain actions, ordering the [respondent] to tender performance, or causing the object to be placed in the custody of a custodian, or issue any other necessary disposition.

The case for a preliminary injunction may be filed at the same time as the main action. When the same counsel represents each party in both matters, the case for a preliminary injunction and the main case will often be considered by the court at the same time.

7.6.4.1 Requirements for a preliminary injunction order

The requirements for a preliminary injunction are a likelihood of success on the merits and the necessity to preserve the patentee’s position pending the final determination. Article 13(1) of the Civil Provisional Remedies Act provides: “A petition for an order for a provisional remedy must clarify the purpose thereof and the rights or relationship of rights that must be preserved and the necessity of preserving it.”

To show that there is a likelihood of success on the merits, it is necessary to demonstrate that a patent right is infringed – that is, that the other party’s goods or services fall within the technical scope of the patented invention. The respondent (alleged infringer) may deny this by showing that the right should be invalidated in a trial for invalidation before the JPO or that the right is not infringed. 243

The necessity of the preliminary injunction must be established by prima facie evidence that shows serious damage or imminent danger to the petitioner (patentee).

7.6.4.2 Proof in a preliminary injunction case

The proof required for a preliminary injunction is a prima facie case. Article 13(2) of the Civil Provisional Remedies Act provides that a prima facie case must show “the right or the relationship of rights to be preserved and the necessity to preserve it.” Prima facie evidence is evidence that can be assessed immediately by the court. 244 Documentary evidence is generally provided, and hearing of a witness who is not present in court is not permitted. A court will accept prima facie evidence that is above factual doubt.

The proof required in an action on the merits is “certainty beyond a reasonable doubt.” The burden of proof is lower for a prima facie case. However, in practice, the proof required for a preliminary injunction is often closer to that required in an action on the merits, particularly when the impact on the respondent (alleged infringer) will be significant and if the possibility of the preliminary injunction being suspended is low.

7.6.4.3 Proceedings of preliminary injunction cases

The Tokyo District Court and the Osaka District Court have jurisdiction over preliminary injunction cases. 245 In principle, the court deciding a preliminary injunction case must hold oral proceedings or a hearing date at which the respondent (alleged infringer) may be present. However, Article 23(4) of the Civil Provisional Remedies Act provides that this does not apply when the objective of the petition for an order of preliminary injunction cannot be achieved if such proceedings are held. The time required for a hearing depends on the complexity of the case, but it usually takes several months from the filing of the petition to the handing down of the decision if the case involves issues of infringement or invalidity.

7.6.4.4 Preliminary injunction cases and necessity of security deposit

A respondent (alleged infringer) may incur damage if a preliminary injunction is incorrectly issued. Therefore, it is usual for a court to require a security deposit when issuing a preliminary injunction. Under the Civil Provisional Remedies Act, whether a security deposit is required is left to the discretion of the court. Article 14(1) of the Civil Provisional Remedies Act provides the following:

An order for a provisional remedy may be issued while requiring provision of security or requiring provision of security within a certain period of time that is found to be reasonable as a condition for implementing the execution of the provisional remedy, or not requiring the provision of security.

The court determines the amount of the security deposit after reviewing materials submitted by the parties and taking various circumstances into account. The amount of the security deposit may be high if the sales generated by the alleged infringing goods or services are large. In addition, the security deposit will not be refunded until the dispute is resolved.

7.6.4.5 Execution of an order for a preliminary injunction

A permanent injunction is not enforceable until a declaration allowing the execution is issued or a judgment becomes final and binding. Conversely, a preliminary injunction order can be executed immediately.

A preliminary injunction is a provisional disposition prohibiting the respondent from performing an action (an alleged infringement) that comes into effect when a preliminary injunction order is served on the respondent (the alleged infringer). When a respondent is in violation of a preliminary injunction, the petitioner (patentee) can seek enforcement by filing a petition for substitute execution or indirect compulsory execution with the execution court based on an authenticated copy of the preliminary injunction order. 246

To enforce an indirect compulsory execution, a petitioner must prove that the respondent is likely to breach their obligation not to act, but it is not necessary to prove that the respondent is actually in breach of their obligation not to act. 247

A preliminary injunction order must be executed within two weeks from the day on which the preliminary injunction order is served on the respondent. 248

7.6.4.6 Appeal against a preliminary injunction case

If a petition for a preliminary injunction order is dismissed, the petitioner (the patentee) may file an immediate appeal within two weeks from the day on which it is notified of the decision. 249 When a preliminary injunction order is issued, the respondent (the alleged infringer) may file an objection to the preliminary injunction with the court that issued the order. 250

An objection to a preliminary injunction order establishes a forum for reassessing the right to be preserved and the necessity of preservation. Although a petition for the stay of the execution of a preliminary injunction may be filed at the same time as an objection to a preliminary injunction order, it is practically impossible to obtain a stay of the execution of a preliminary injunction order. This is because a prima facie case is required to demonstrate the grounds for revocation of the order, and the execution of the preliminary injunction is likely to cause damage for which compensation cannot be made. 251 Therefore, the hurdle for seeking a stay is high.

The respondent may file a petition for an order against the petitioner to file a suit on the merits. If the petitioner does not file a suit on the merits despite the issuance of the order, the respondent may file a petition for revocation of the preliminary injunction. Article 37 of the Civil Provisional Remedies Act provides:

(1) At the petition of the [respondent], the court that issued the order for a provisional remedy must order the [petitioner] to, within a certain period of time that it finds to be reasonable, file an action on the merits and submit a document certifying such filing, or, if the [petitioner] has already filed an action on the merits, to submit a document certifying that such action is pending before a court. (2) The period referred to in the preceding paragraph must be two weeks or more. (3) The court must revoke the order for a provisional remedy at the petition of the [respondent] if the [petitioner] fails to submit the document set forth in paragraph (1) within the period set forth in said paragraph.

7.6.4.7 Claim for damages against an erroneous order for a preliminary injunction

If, after a preliminary injunction order against infringement has been issued, it becomes clear in a judgment on the merits – as a result of a successful invalidity defense or a non-infringement argument – that there is no right to be preserved, and the judgment becomes final and binding, the petitioner (the patentee) who has executed the preliminary injunction order is liable to compensate the respondent for damage suffered as a result of the execution of the preliminary injunction if the petitioner was willful or negligent when enforcing the illegal preliminary injunction. Unless there are special circumstances, it is generally presumed that the petitioner was negligent when executing an illegal preliminary injunction. 252

7.6.5 Discovery (limited) and gathering of information

Commentators have noted that the law relating to evidence collection in Japan needs amendment because it favors infringers. 253 Attorney–client privilege is rarely an issue in patent infringement suits in Japan as discovery is limited.

The process for evidence collection under the Patent Act includes special provisions that were based on and supplement the Code of Civil Procedure.

7.6.5.1 Order to produce documents

One of the traditional methods for collecting evidence under Article 105 of the Patent Act is an order to submit documents. 254 Article 105, which is a special provision that supplements Article 220 of the Code of Civil Procedure, aims to reduce the burden of the plaintiff to prove the act of infringement and the amount of damage. The exceptions to the obligation to submit documents are more limited in the Patent Act compared to the Code of Civil Procedure. Article 105(1) of the Patent Act stipulates the exception as “reasonable grounds,” whereas Article 220 of the Code of Civil Procedure stipulates a list of specific situations in which a person may not refuse to submit a document.

7.6.5.1.1 Requirements

Article 105(1) stipulates that, in litigation concerning the infringement of a patent right or exclusive license, the court may, upon a motion of a party, order the other party to produce documents that are required to prove the act of infringement or to calculate the damage arising from the act of infringement. It also stipulates that this shall not apply where there are reasonable grounds for the person possessing the documents to refuse production of the documents. For example, it may be reasonable grounds to refuse the production of a document if it contains trade secrets. However, the courts have found that reasonable grounds are not found merely because a document contains trade secrets. A confidentiality protective order under Article 105-4 of the Patent Act can reduce the disadvantage to a person possessing such a document and is a relevant factor when denying reasonable grounds. 255

7.6.5.1.2 Determination of reasonable grounds

Article 105(2) of the Patent Act stipulates that, if a court finds it necessary to decide whether there are reasonable grounds, the court may cause the person possessing documents to present such documents. In such a case, no person may request the disclosure of the documents.

It is not always easy for the court to decide whether there are reasonable grounds. However, generally speaking:

• when the documents would prove infringement, reasonable grounds will often be denied under the protection of a protective order; and
• when the documents would not prove infringement, reasonable grounds will often be found.

It is not appropriate for a court to decide this issue based solely on the assertion of the person possessing the documents. Therefore, Article 105(3) of the Patent Act provides that a court may disclose the documents to the parties or their attorneys when it is necessary to make a decision concerning the existence of reasonable grounds. In addition, under Article 105(4), a court may disclose the documents to a technical advisor with the consent of the parties when it is necessary to hear an explanation based on technical knowledge or acquire technical advice from the technical advisor. 256

The inspection of evidence relating to infringing objects such as manufacturing equipment is indispensable to proving infringement in some patent litigation cases. Therefore, under Article 105(5) of the Patent Act, the same rules outlined above in relation to document production apply mutatis mutandis to the production of an infringing object.

7.6.5.1.3 Effect of a party’s noncompliance with an order to produce a document

According to Article 224 of the Code of Civil Procedure, a court may find an adverse party’s allegations concerning the details of a document to be true if a party:

• does not comply with an order to produce a document; or
• has caused a document to be lost or otherwise unusable for the purpose of preventing the adverse party from using it.

This provision ensures the effectiveness of the system of production of documents.

7.6.5.2 On-site examination by an expert (inspection system)

Article 105-2 of the Patent Act provides for an inspection system, in which a neutral technical expert (inspector) enters the facility of an alleged infringer, conducts an investigation when there is a possibility of patent infringement, and submits a report to a court. The inspection system is thought to be an effective measure for collecting evidence in cases where the production method is unclear or where infringement cannot be determined by physically taking the product apart.

The inspection system can only be used in limited circumstances. The term “in litigation” under Article 105-2(1) of the Patent Act implies that the system can only be used after a patent infringement suit has been filed. Accordingly, a party cannot use the inspection system when filing a preliminary injunction action (see above).

7.6.5.2.1 Requirements to issue an inspection order

According to Article 105-2(1), the court, after hearing the opinions of the parties, may issue the inspection order after considering the following:

• whether the evidence is necessary to prove the infringement;
• the probability that the evidence will prove the infringement. This is required to prevent abuse of the inspection system. The level of the “probability” required is not as high as for the proof of infringement; 257
• whether there is no alternative. This requirement will not be satisfied when an alleged infringer’s product can be easily acquired on the open market; and
• whether it is not too burdensome for the party subject to the inspection. A typical example of such a burden is that the party is forced to shut down its factory for a while.

7.6.5.2.2 Inspector

Under Article 105-2(2), the court designates neutral and appropriate experts as inspectors. These inspectors may include lawyers, patent attorneys or university professors. Under Article 105-2-4(2), designated inspectors may enter a defendant’s factories, office or other place and demand the production of documents, inspect equipment or conduct experiments. Depending on the case, two or more experts may be designated as inspectors.

7.6.5.2.3 Disclosure of the inspection report to the plaintiff

Article 105-2-4(1) provides that, after conducting the inspection, inspectors must summarize the results and submit a report to the court. The report will be disclosed to the inspected defendant but not to the plaintiff at this stage. The defendant may petition the court not to disclose the report for the protection of a trade secret. 258 The court will then decide whether to disclose the whole or a part of the report to the plaintiff. 259 The defendant’s petition will be allowed if reasonable grounds not to disclose the report are found. Otherwise, the report will be disclosed to the plaintiff, and the plaintiff may submit it to the court as evidence.

7.6.5.2.4 Effect of noncompliance with an inspection order

Under Article 105-2-5, if a party does not comply with an inspection order, the court may find the adverse party’s allegations concerning the facts to be proved to be true, as is the case when a party does not comply with a document production order.

7.6.6 Infringement determination

7.6.6.1 explanatory session.

The court will usually not hear parties or witnesses in patent infringement lawsuit proceedings. Rather, the court determines the scope of the patented invention and patent infringement using documentary evidence, such as patent specifications, technical documents of prior art and specifications of the allegedly infringing products. It is also rare for an expert witness to be used to prove the technical background of a patented invention.

However, as the last substantive step of the stage for assessing infringement, the court will usually preside over an explanatory session (technical briefing session). 260 These sessions are held not only for cases involving cutting-edge technology or highly specialized technology but also to establish the general understanding of persons having ordinary skill in the art in the technical field in question, or where general technical knowledge in the art is at issue.

Explanatory sessions may take various forms. For example, an explanatory session may be conducted as an official oral court hearing or as part of the preparatory proceedings. An explanatory session conducted as an oral court hearing will be attended by the judges, the judicial research official in charge of the case, a court clerk and three technical advisors selected from among the experts in the technical field in question. 261

At the beginning of the session, each party will make a presentation lasting approximately 30 minutes summarizing their arguments and covering technical matters, such as the details of the invention, prior art and common general technical knowledge available at the time when the application was filed. The parties may provide an explanation by using the products produced by working a patented invention and the allegedly infringing products and may use diagrams, presentation software or videos to indicate correlations between the patented invention and the allegedly infringing product.

After the presentation, the participants engage in a discussion that allows both parties, the technical advisors, judges and the judicial research official to ask questions about the content of the presentation or to clarify points in the arguments or evidence. The technical advisors may also present explanations about technical matters. These sessions allow all participants to identify issues and deepen their understanding of technical matters.

7.6.6.2 Preliminary view and settlement

Following the explanatory session, the court will prepare a preliminary view on infringement, taking into account the arguments and evidence, including the technical explanations given by the parties.

If the court finds non-infringement, the court closes the proceedings and delivers a judgment. In some cases, the court may recommend the parties compromise and designate a date for settlement. There are a number of reasons why the court may still recommend settlement in these circumstances, including that the case is not strong and the successful party is not sure if they will be successful in IP High Court proceedings, or that the settlement agreement includes a licensing clause.

If the court finds infringement, the court will express its preliminary view, then proceed to the stage for assessing damages. In some cases, the court may recommend the parties settle at this stage and designate a date for settlement. The court expresses this view on the premise that both parties have completed their arguments and the introduction of evidence regarding infringement.

A large number of cases resolved through court settlement tend to favor the patent holder, including cases where a large amount of damages is claimed. 262 In Japan, court settlement is widely recognized as an efficient and speedy way to reach an appropriate resolution.

7.6.7 Damages determination

When the court proceeds to the stage for assessing damages, the plaintiff should clarify the allegations regarding the amount of damage, including the relevant statutory provision that constitutes the basis for the plaintiff’s claim for damages. 263 If the plaintiff does not make any change to the statement of the claim written in the original complaint, the plaintiff should state so on this date.

The plaintiff or the defendant presents their arguments on price, quantities, costs and other matters relating to the allegedly infringing product or process that are necessary to determine the amount of damage, depending on the nature of the damages claim. 264

The plaintiff will then present a document that clarifies their arguments regarding the amount of damages based on the quantities and values introduced by the plaintiff and the defendant, which could include an amendment of the amount claimed in the written complaint. 265 Following this, the defendant will present a document that either acknowledges or denies the amount of damages claimed by the plaintiff. If the defendant denies the damages claim, the document has to state appropriate reasons for that denial.

If disputes remain between the parties, the court may order that an opinion of a neutral expert (to be appointed by the court) be obtained for the calculation of damages. In such a case, the parties are obliged to assist the expert witness in their calculation of damages. 266

The plaintiff may then counterargue and provide supplementary evidence, and the defendant may do the same. Following this, the stage for determining damages is complete. The court will prepare its final view regarding the amount of damages. It will then conclude the preparatory proceeding and oral argument and deliver a judgment. In some cases, the court may disclose its opinion to the parties and advise them to compromise.

The methods for calculating damages are outlined below in Section 7.7.2 .

7.6.8 Conciliation

IP conciliation is designed to provide simple and speedy resolution of IP rights disputes. IP conciliation is suited to patent infringement cases when the issues in dispute are clear but have not been able to be resolved through negotiations between the parties.

The IP divisions of the Tokyo District Court and Osaka District Court provide IP conciliation services. 267 While summary courts have general jurisdiction over conciliation cases, the Tokyo District Court and the Osaka District Court handle IP-specific conciliation cases. A case is handled by the district court agreed to by the parties. 268

The Osaka District Court has published information on its IP conciliation process in English:

• Explanation of the New IP Conciliation at the Osaka District Court ; and
• Guidelines for IP Conciliation Proceedings at the Osaka District Court . 269

IP conciliation is conducted by a conciliation committee composed of three members: a judge of the IP division of the district court and two experts, such as a patent attorney or a lawyer with extensive experience in IP cases. In cases that involve technical matters, a judicial research official may administer some matters during a conciliation process. 270

The parties to an IP conciliation are required to submit their allegations and related evidence by the first day of proceedings, and the conciliation committee is required to provide its opinion verbally by the third date of the proceedings. The committee’s opinion includes not only its determination on the issues but also its view on whether the case would be more suited to litigation, given the difficulties of proof and the complexity of the case.

The parties may then choose to either continue or terminate the conciliation (due to an unsuccessful conciliation process or the withdrawal of the petition). If the conciliation is terminated, the case may return to out-of-court negotiations, or a party may file a lawsuit or request a preliminary injunction. If the parties reach agreement during conciliation, and the agreement is recorded, this record will have the same effect as a judicial settlement. 271

If a lawsuit is filed in relation to the same claim as a terminated conciliation, judges of any of the IP divisions other than the division of the judge who served as a member of the conciliation committee will conduct the lawsuit proceedings.

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Home > Systems/Procedures > Laws and Policies > Information on Foreign Industrial Property Systems > TRIPS AGREEMENT

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TRIPS AGREEMENT

TABLE OF CONTENTS

on Trade-Related Aspects of Intellectual Property Rights as concluded on April 15, 1994 ENTRY INTO FORCE: January 1, 1995

PART I GENERAL PROVISIONS AND BASIC PRINCIPLES

Article 1 Nature and Scope of Obligations / Article 2 Intellectual Property Conventions / Article 3 National Treatment / Article 4 Most-Favoured-Nation Treatment / Article 5 Multilateral Agreements on Acquisition or Maintenance of Protection / Article 6 Exhaustion / Article 7 Objectives / Article 8 Principles

PART II STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

Section 1 copyright and related rights.

Article 9 Relation to the Berne Convention / Article 10 Computer Programs and Compilations of Data / Article 11 Rental Rights / Article 12 Term of Protection / Article 13 Limitations and Exceptions / Article 14 Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations

Section 2 Trademarks

Article 15 Protectable Subject Matter / Article 16 Rights Conferred / Article 17 Exceptions / Article 18 Term of Protection / Article 19 Requirement of Use / Article 20 Other Requirements / Article 21 Licensing and Assignment

Section 3 Geographical Indications

Article 22 Protection of Geographical Indications / Article 23 Additional Protection for Geographical Indications for Wines and Spirits / Article 24 International Negotiations; Exceptions

Section 4 Industrial Designs

Article 25 Requirements for Protection / Article 26 Protection

Section 5 Patents

Article 27 Patentable Subject Matter / Article 28 Rights Conferred / Article 29 Conditions on Patent Applicants / Article 30 Exceptions to Rights Conferred / Article 31 Other Use Without Authorization of the Right Holder / Article 32 Revocation/Forfeiture / Article 33 Term of Protection / Article 34 Process Patents: Burden of Proof

Section 6 Layout-Designs (Topographies) of Integrated Circuits

Article 35 Relation to the IPIC Treaty / Article 36 Scope of the Protection / Article 37 Acts Not Requiring the Authorization of the Right Holder / Article 38 Term of Protection

Section 7 Protection of Undisclosed Information

Section 8 control of anti-competitive practices in contractual licences, part iii enforcement of intellectual property rights, section 1 general obligations, section 2 civil and administrative procedures and remedies.

Article 42 Fair and Equitable Procedures / Article 43 Evidence / Article 44 Injunctions / Article 45 Damages / Article 46 Other Remedies / Article 47 Right of Information / Article 48 Indemnification of the Defendant / Article 49 Administrative Procedures

Section 3 Provisional Measures

Section 4 special requirements related to border measures.

Article 51 Suspension of Release by Customs Authorities / Article 52 Application / Article 53 Security or Equivalent Assurance / Article 54 Notice of Suspension / Article 55 Duration of Suspension / Article 56 Indemnification of the Importer and of the Owner of the Goods / Article 57 Right of Inspection and Information / Article 58 Ex Officio Action / Article 59 Remedies / Article 60 De Minimis Imports

Section 5 Criminal Procedures

Part iv acquisition and maintenance of intellectual property rights and related inter partes procedures, part v dispute prevention and settlement.

Article 63 Transparency / Article 64 Dispute Settlement

PART VI TRANSITIONAL ARRANGEMENTS

Article 65 Transitional Arrangements / Article 66 Least-Developed Country Members / Article 67 Technical Cooperation

PART VII INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

Article 68 Council for Trade-Related Aspects of Intellectual Property Rights / Article 69 International Cooperation / Article 70 Protection of Existing Subject Matter / Article 71 Review and Amendment / Article 72 Reservations / Article 73 Security Exceptions

[Last updated 1 April 2004]

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What is a Patent Assignment?

Whether you’re curious about assigning a patent to someone else or having a patent assigned to you, you might be wondering what a patent assignment is? Patent law allows patent holders to assign patents to other parties. Patent assignments often take place between an employee and his company, however, it’s not uncommon for a person to assign his interest to a patent to a third party. So, what exactly is a patent assignment? We will cover this below.

What is a Patent Assignment ?

A patent assignment is an agreement by the patent holder (assignor) to transfer his interest and ownership of a patent to another party known as the assignee (party receiving patent rights). Once a patent holder executes an assignment agreement assigning his interest in a patent to another party, the assignor loses his rights under the patent. The assignor (transferor) will no longer be able to stop others from using, making, and selling the patent invention. Instead, the assignee gains these rights.

In the United States, patent assignments are very common between an employee and his company because a company or business cannot apply for a patent. An inventor has to apply for a patent and then the inventor then assigns his interest under a patent to the company for which he is working.

An assignment transfers the ownership of the patent from the inventor or employee to the company for which he is working. That said, assignments can also be made by any two parties that agree to transfer ownership of a patent.

So, now we know that a patent holder can transfer his patent rights to a third party, can an inventor assign a pending patent application? Absolutely, yes! An inventor can assign his rights under a pending patent application to another party.

If you’re an inventor and you want to assign your patent to another party, just remember that patent assignments are final. Once an inventor assigns (transfers) his interest in a patent to another party, the assignment (transfer of rights) cannot be undone, it’s final.

What is a Patent Assignor?

A patent assignor is a party that transfers it’s interest and right to the patent to the transferee (assignee) or the party receiving the patent. Once an agreement is executed and recorded with the patent office, the assignee becomes the patent right holder.

What is a Patent Assignee?

A patent assignee is a person to whom the patent rights are transferred to. Said differently, the assignee is the new owner of the patent. An assignee should immediately record an assignment agreement with the patent office to establish his rights as the new patent owner.

Requirements to Execute a Patent Assignment Agreement

For a patent holder to assign (transfer) his interest in a patent to another party, the assignor (person transferring patent rights) must execute a written agreement that includes details, such as the name of the assignor and the assignee, as well as the patent that is to be assigned (transferred) to the assignee.

Once the assignment agreement is executed, it must be filed with the USPTO for the agreement to take effect. Please remember that the agreement needs to be in writing, oral agreements are not sufficient to transfer the rights from the patent holder to the assignee.

The assignment agreement must include the following information:

• The agreement must contain the legal names of both the assignor (person transferring patent rights) and the assignee (person receiving patent rights).
• The agreement must clearly identify the patent by stating the name of the patent, as well as the patent number.
• The terms of the agreement must be included in the assignment agreement.
• Both the assignor(s) and assignee(s) must sign the agreement.

Who Owns the Patent After a Patent Assignment?

Once the assignor and assignee execute an assignment agreement and file the assignment with the USPTO, the assignee owns the patent. As the new patent owner, the assignee will have the right to stops others from using, making, and selling the patented invention for the remaining patent term.

The assignor (person who transferred his rights) loses his rights under the patent and will no longer be able to enforce the patent. Assigning a patent is similar to selling a car and registering the title in someone else’s name. Once the patent is assigned, similar to registering the title of a vehicle in someone else’s name, the new owner is the assignee (person to whom the patent was transferred to). Once the assignment is recorded with the patent office, the records will be updated to show the assignee (new owner) of the patent. This information will then be made available to the public.

Assigning a Patent vs Licensing a Patent

Assigning a patent is much different than licensing a patent. When a patent holder assigns his interest in a patent to another party, he is usually transferring ownership of the patent to the other party. Patent licensing is different in that a license is merely a transfer of the right to use the patent in the manner specified in the licensing agreement. Assignments transfer ownership while a license transfers the right to use the patented invention. That said, if a patent is assigned, the information of the assignor and assignee will become part of the public record. Whereas if an inventor licenses his patent, that information is not typically published to the public.

Does a Patent Assignment Need to be Notarized?

The USPTO does not require patent assignments to be notarized. The patent office only requires that the assignment be executed and signed by both the assignor and the assignee. Once an agreement is executed and signed by the parties, the assignment must be recorded with the patent office.

If the assignee fails to record the assignment, there is nothing to protect the assignee from the assignor assigning the patent to a third party. So, if you’re an assignee, make sure to record your assignment as soon as it’s executed to avoid problems.

Although a patent assignment does not need to be notarized, notarizing it can be beneficial in the event that the previous patent holder claims that he did not make the assignment. It’s an added layer of protection that could prove to be very valuable.

Can Multiple People Own a Patent?

Yes, multiple people can own a patent. For example, if three inventors make a single invention, all three are considered joint inventors and their names should appear on the patent application, as well as the issued patent.

If there are multiple inventors on a patent application, all inventors must execute an assignment agreement to assign each of their interest to the assignee for the assignee to own the entire patent.

For example, if only 1 of 3 inventors assigns his interest, the assignment would be a partial assignment until all 3 inventors each assign (transfer) their interest to the assignee.

Patent Assignment Tips

1) hire an attorney to assist you with your patent assignment.

Any individual who’s either an assignor or assignee should hire an attorney to assist with the assignment of a patent. Attorneys will ensure that the assignment agreement complies with the law and contains all of the information that is required for a successful patent assignment. Although it’s not unheard of for parties to execute an assignment agreement on their own, making a mistake could cause legal troubles down the road.

2) Don’t Forget to Record A Patent Assignment

If you have been assigned a patent, don’t forget to record your assignment with the USPTO. We say this because patent assignments don’t go into effect unless the assignment is recorded with the patent office. Recording a patent assignment tells the patent office that you are the new owner of the patent.

If an assignee does not record the assignment with the patent office, it is as if the assignment never took place. Also, if it’s not recorded, the assignor could possibly assign the patent to a third party. So, make sure to record your assignment as quick as possible.

3) Notarize Your Assignment Agreement

It’s good practice to have an assignment agreement notarized. This helps in a situation where the assignor claims that he did not execute the assignment agreement. In the event that an assignor claims he did not execute the assignment agreement, you will have evidence to show otherwise. The burden may shift to the assignor to prove that he did not execute the assignment agreement. So, notarize your agreement, as well as other documents relating to the assignment of a patent.

4) How Much Does it Cost to Record an Assignment with the USPTO?

It’s currently free to record an assignment with the USPTO if a party submits the assignment electronically. However, if a party chooses to record the assignment agreement by paper, there is a $50 fee for the service. So, record your assignment online if you want to avoid paying anything. That said, you may need to publish your assignment in an official gazette, such publication does cost $25.

Patent Assignment

Let’s do a quick recap. A patent assignment is the transfer of ownership of a patent from one party to another. The party transferring its right is known as the assignor and the party receiving the patent rights is known as the assignee.

To assign a patent, both parties must execute a written assignment agreement to reflect the transfer of ownership. Once the parties execute the agreement, they must record it with the patent office to establish the new ownership. If you have any general questions or comments, please feel free to leave them in the comments section below.

My name is Noah and I love everything about patents and patent law. During my law school years, I studied intellectual property law and took courses in patent law, trademark law, and copyright law. I graduated from Loyola Marymount Law School and obtained my Juris Doctorate in 2014.

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Patent Assignment Agreement

This Patent Assignment Agreement is a comprehensive document designed to facilitate the transfer of patent ownership from the original patent owner, known as the assignor, to another party, known as the assignee .

A patent is a legal grant issued by the United States Patent and Trademark Office (USPTO) to an inventor, providing exclusive rights to make, use, and sell their invention for a limited period , typically 20 years from the filing date. This protection is granted in exchange for the public disclosure of the invention. This system encourages innovation and lets inventors benefit from their creations for a specified period of time.

An assignment is the legal transfer of ownership or rights of a patent from one party (assignor) to another (assignee) . Using a Patent Assignment Agreement, the assignor forever relinquishes their rights to the patent, and the assignee assumes control and ownership of those rights for the duration of the patent.

This assignment can be made either before or after a patent application has been issued as a patent. By law, a patent is considered personal property and, so, can be sold or transferred in the same way one could sell a car or a piece of furniture. This document formally initiates the transfer process, providing clarity and protection for both parties involved. This agreement is particularly useful when inventors, companies, or individuals who wish to transfer their patent rights, whether for financial considerations, strategic partnerships, or other business transactions.

This document is different from a Trademark Assignment Agreement, which is used for the transfer of a different kind of intellectual property, known as a trademark. A trademark is usually a brand name or logo, unlike a patent, which is usually an invention of some sort. This is also slightly different from an Intellectual Property Release . Although that form could be used for a patent, it is generally used for copyrighted material, like works of art or pieces of music. In that case, payment is not made and, instead, the copyrighted works are simply "released," or given to another party. This document can also be distinguished from an Intellectual Property Permission Letter, as there, one party is writing to request permission to use the intellectual property of another. The Patent Assignment Agreement would then come after the letter, but the letter is not the formal legal document that initiates the transfer.

How to use this document

This document includes all the information necessary to transfer the ownership of a patent from one party to another. This document should be used when the transfer will be permanent, usually for a one-time fee , and no royalties will be due after the assignment. This document allows the parties to fill in details of the patent to be transferred, such as the patent name, original recordation number, and date the patent was initially issued . This ensures that everything needed for new recordation with the United States Patent and Trademark Office (USPTO) is present.

Once the document has been completed, both parties should sign the document in front of a notary and have the notary complete the notary page. The document must then be recorded with the USPTO within three months of its signing, or it becomes void. The current cost for filing an assignment with the USPTO is $40 per patent. The assignment can be filed either online or by mail.

Applicable law

In the United States, specific federal laws govern patent assignments, primarily under Title 35 of the United States Code , which pertains to the country's patent system. Section 261 of Title 35 outlines the general provisions related to patent ownership and transfers. According to this statute, patent assignments must be in writing to be valid, and they require the signature of the owner of the patent or their authorized representative. The law also specifies that the assignment must be recorded with the USPTO to establish priority and provide notice to the public.

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Other names for the document:

Patent Assignment Contract, Intellectual Property Transfer Agreement, Technology Rights Conveyance Agreement, Innovation Assignment and Transfer Accord, Assignation of Patent Rights Contract

Country: United States

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Patent Assignment Agreement

Jump to section, what is a patent assignment agreement.

A patent assignment agreement is a document that transfers the rights to an invention or idea from one person or company to another. This agreement includes all necessary information such as the name and contact information for both parties, any limitations on what can be done with the patented technology, and how much money should change hands if someone licenses the patent.

Patent assignment agreements are not always needed when selling a product or process, but they need to be written if you want to protect your intellectual property (IP) rights and make sure no one else uses them without permission.

Common Sections in Patent Assignment Agreements

Below is a list of common sections included in Patent Assignment Agreements. These sections are linked to the below sample agreement for you to explore.

Patent Assignment Agreement Sample

Reference : Security Exchange Commission - Edgar Database, EX-10.19 4 dex1019.htm PATENT ASSIGNMENT AGREEMENT , Viewed December 14, 2021, View Source on SEC .

Who Helps With Patent Assignment Agreements?

Lawyers with backgrounds working on patent assignment agreements work with clients to help. Do you need help with a patent assignment agreement?

Post a project  in ContractsCounsel's marketplace to get free bids from lawyers to draft, review, or negotiate patent assignment agreements. All lawyers are vetted by our team and peer reviewed by our customers for you to explore before hiring.

Meet some of our Patent Assignment Agreement Lawyers

I am a licensed and active NY and CT Contracts Attorney, with over 20 years of diverse legal and business experience. I specialize in reviewing, drafting and negotiating commercial agreements. My practice focuses on working with small business clients as well as clients from international brokerage firms on acquisitions, especially in the Ecommerce space; drafting, negotiating, reviewing and advising on business agreements; ; breach of contract issues, contract disputes and arbitration. I am licensed to practice in New York and Connecticut, and am a FINRA and NCDS Arbitrator. My experience includes serving as General Counsel to small businesses. This entails reviewing, updating and drafting contracts such as employments agreements, asset purchase agreements, master services agreements, operating agreements and a variety of business and commercial contracts. Additionally, I assist clients with business strategies, contract disputes and arbitration. My diverse experience allows me to give my clients a well-rounded approach to the issues they face. I have been at top AML law firms; a Vice President at an Investment Bank, a Civil Court Arbitrator presiding over cases in contract law, commercial law, a Hearing Officer, presiding over cases and rendering written decisions, and a Judicial Clerk to a Civil Court Judge. It would be a privilege to assist you and your business with my services.

With over ten years of intellectual property experience, I’m happy to work on your contractual matter. I am very diligent and enjoy meeting tight deadlines. Drafting memoranda, business transactional documents, termination notices, cease and desist letters, licenses and letter agreements are all in my wheelhouse! Working in a variety of fields, from construction to pharmaceutical, I enjoy resolving any disputes that come across my desk.

Jeremiah C.

Creative, results driven business & technology executive with 24 years of experience (15+ as a business/corporate lawyer). A problem solver with a passion for business, technology, and law. I bring a thorough understanding of the intersection of the law and business needs to any endeavor, having founded multiple startups myself with successful exits. I provide professional business and legal consulting. Throughout my career I've represented a number large corporations (including some of the top Fortune 500 companies) but the vast majority of my clients these days are startups and small businesses. Having represented hundreds of successful crowdfunded startups, I'm one of the most well known attorneys for startups seeking CF funds. I hold a Juris Doctor degree with a focus on Business/Corporate Law, a Master of Business Administration degree in Entrepreneurship, A Master of Education degree and dual Bachelor of Science degrees. I look forward to working with any parties that have a need for my skill sets.

Lawrence S.

Lawrence A. “Larry” Saichek is an AV rated attorney and a CPA focusing on business and real estate transactions, corporate law and alternative dispute resolution. With a background including five years of public accounting and six years as “in house” counsel to a national real estate investment company, Larry brings a unique perspective to his clients – as attorney, accountant and businessman. Many clients think of Larry as their outside “in house” counsel and a valued member of their team. Larry is also a Florida Supreme Court Certified Mediator and a qualified arbitrator with over 25 years of ADR experience.

I enjoy helping businesses of all sizes succeed, from start-ups to existing small and medium sized businesses. I regularly advise corporate clients on a variety of legal issues including formation, day to day governance, reviewing and drafting business contracts and other agreements, business acquisitions and sales, as well as commercial and residential real estate issues, including sales, purchases and leases. As an attorney licensed in both Michigan and Florida, I also advise clients on real estate issues affecting businesses and individuals owning real property in either state, whether commercial, residential or vacation/investment property. I also regularly assist nonprofit organizations in obtaining and maintaining tax exempt status, and provide general legal counsel on all matters affecting public charities, private foundations and other nonprofit organizations.

Entertainment Attorney with 30+ years of experience, representing all aspects of the TV, Film, Music and Publishing Industries

Aaron focuses his practice on entrepreneurs and emerging growth companies, providing general counsel services for companies from formation through exit. Aaron frequently advises clients in connection with routine and unique legal, business, and strategic decisions, including corporate, business and technology transactions, angel and venture financings, mergers and acquisitions, protection of intellectual property, and information privacy and data security.

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Non Disclosure Agreement - Draft/Revise

Location: california, turnaround: less than a week, service: drafting, doc type: patent assignment agreement, number of bids: 11, bid range: $199 - $1,000, review provisional patent spec doc for start-up potential, turnaround: over a week, number of bids: 2, bid range: $250 - $790, user feedback:, related contracts.

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Free Patent Assignment Agreement Template for Microsoft Word

Download this free Patent Assignment Agreement template as a Word document to help you assign the rights in an existing patent to a third party

Patent Assignment Agreement

This Patent Assignment (hereinafter referred to as the “Assignment”) is made and entered into on [Insert Effect Date] (the “Effective Date”) by and between the following parties:

[Insert Assignor Name] [Insert Assignor Address]

(the “Assignor”)

[Insert Assignee Name] [Insert Assignee Address]

(the “Assignee”)

WHEREAS the Assignor is the sole and rightful owner of certain ideas, inventions, patent applications therefor and patents thereon (collectively referred to as the “Patents”) set forth in Exhibit A attached hereto; and

WHEREAS, the Assignee desires to purchase or acquire the Assignor’s right, title, and interest in and to the Patents; and

WHEREAS, the Assignor and Assignee are both duly authorized and capable of entering into this Assignment.

NOW, THEREFORE, for valuable consideration, the receipt of which is acknowledged, the parties hereto agree as follows:

1. ASSIGNMENT.

The Assignor does hereby sell, assign, transfer and set over to Assignee [Insert Amount]% of its right, title, and interest in the Patents to Assignee for the entire term of the Patents and any reissues or extensions and for the entire terms of any patents, reissues or extensions that may issue from foreign applications, divisions, continuations in whole or part or substitute applications filed claiming the benefit of the Patents. The right, title, and interest conveyed in this Assignment is to be held and enjoyed by Assignee and Assignee’s successors as fully and exclusively as it would have been held and enjoyed by Assignor had this assignment not been made.

The Assignor authorizes United States Patent and Trademark Office and any other applicable jurisdictions outside the United States to record the transfer of the patent and/or patent applications set forth in Exhibit A to Assignee as the recipient of Assignor’s right, title, and interest therein.

Assignor further agrees to: (a) cooperate with Assignee in the protection of the patent rights and prosecution and protection of foreign counterparts; (b) execute, verify, acknowledge and deliver all such further papers, including patent applications and instruments of transfer; and (c) perform such other acts as Assignee lawfully may request to obtain or maintain the Patents and any and all applications and registrations for the invention in any and all countries.

2. WARRANTY.

Assignor warrants that Assignor is the legal owner of all right, title, and interest in the Patents, that the Patents have not been previously pledged, assigned, or encumbered, and that this Assignment does not infringe on the rights of any person.

3. GOVERNING LAW.

This Assignment is governed by and is to be construed in accordance with the laws of the State of [Insert State].

4. ENTIRE AGREEMENT.

This Assignment constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with respect to the subject matter hereof.

5. SEVERABILITY.

If one or more provisions of this Assignment are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. If the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision will be excluded from this Assignment, (ii) the balance of the Assignment will be interpreted as if such provision were so excluded and (iii) the balance of the Assignment will be enforceable in accordance with its terms.

6. ADVICE OF COUNSEL.

EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.

IN WITNESS whereof, the Assignor and Assignee have executed this Agreement as of the Effective Date.

________________________________________________________________

By: ___________________________________ Date: __________________ [Insert Name of Assignor]

By: ___________________________________ Date: __________________ [Insert Name of Assignee]

List of Patents

U.S. Patent/Application number: _________________ Dated: _________________ Title: _________________

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