Outline of invention under patent law (industrial applicability)
According to Article 2.1 of the Patent Law, "Invention" in this law means a high-level creation of a technical idea utilizing the laws of nature. The invention under the patent law is defined.
If the invention does not fall under the invention under the Patent Law prescribed in Article 2.1 of the Patent Law, it will be rejected as a violation of Article 29 of the Patent Law.
Article 29 of the Patent Act stipulates that "a person who has made an invention that can be used industrially ... can obtain a patent for that invention."
An invention that can be used industrially is synonymous with an invention under the Patent Law.
In this Article 29 Pillar of the Patent Law, if the invention for which a patent application is filed is not an invention that can be industrially used for reasons of refusal, that is, if the invention does not fall under the invention under the Patent Law, the patent application is made. Will be rejected.
In addition, the Article 29 Pillar of the Patent Law is also the reason for invalidation.
I often say on TV that entertainers "invented", but most of them are not patented inventions.
For example, artificial arrangements and skills are rejected because they are not inventions under patent law, and even if a patent application is filed, they are not industrially applicable inventions.
What is an "invention"? -Is professional wrestling an invention? I wrote a column called, so I would appreciate it if you could read it.
What is an invention under the patent law?
"The law of nature" is the law found by experience in nature.
Therefore, the laws and arrangements devised by human mental activity are not natural laws.
For example, the calculation method, encryption method, psychological law, etc. are not inventions under the patent law because they do not use the laws of nature.
To be an invention under patent law, it must use the laws of nature.
Therefore, the law of nature itself (law of universal gravitation, etc.) and things that violate the law of nature, such as perpetual motion, are not inventions under the patent law.
It is necessary to be able to repeat the same result with a certain degree of certainty.
However, 100% certainty is not always necessary.
For example, the method of culturing pearls is an invention under patent law.
It was clarified by the 2002 revision of the Patent Law that computer programs are also inventions under the Patent Law.
Pharmaceuticals are also inventions under the Patent Law.
Those that do not fall under the invention under the Patent Law (Patent Examination Standards)
(i) The law of nature itself
Since an "invention" must utilize the laws of nature, the laws of nature such as the law of conservation of energy and the law of universal gravitation do not fall under the category of "invention."
(ii) A mere discovery, not a creation
Since an "invention" must be created, a mere discovery of a natural product (eg, ore), a natural phenomenon, etc. that the inventor did not create with the intention in mind does not fall under "invention". ..
However, chemical substances, microorganisms, etc. artificially isolated from natural products are created and fall under the category of "invention".
(iii) Things that violate the laws of nature
Means that violate the laws of nature such as the law of conservation of energy (eg, so-called "perpetual motion") for at least a part of the matters for specifying the claimed invention (hereinafter referred to as "invention specifying matters" in this part). If there is, the claimed invention does not fall under "invention".
(iv) Those that do not use the laws of nature
(1) Laws other than natural law (example: economic law)
(2) Artificial arrangements (eg game rules themselves)
(3) Mathematical formula
(4) Human mental activity
(5) Those that use only the above (1) to (4) (Example: How to do business itself)
The following is an excerpt from the patent examination standards
(Example of those that do not use the laws of nature)
Example 1: Computer programming language (corresponds to (2) above)
Example 2: A collection method that collects electricity charges or gas charges by rounding off less than 10 yen of the collected amount (corresponding to (5) above).
Example 3: A large number of containers containing drinking water are loaded in the hold from an area where crude oil is expensive and drinking water is cheap, and the ship is transported to an area where drinking water is expensive and crude oil is cheap. How to operate a container ship that loads crude oil and returns to the departure point
Example 4: Make a set A with an arbitrary number of utility poles in advance, make a required number of sets such as B group, C group, D group, etc. consisting of the same number of utility poles, and attach the same restraint to each of these utility poles. A utility pole advertising method characterized in that a plurality of different sets of billboards can be circulated for each set of utility poles for a certain period of time so that the billboards can be presented.
Example 5: A method of playing shogi between players in remote areas, in which the step of transmitting one's hand to the other party using a chat system during one's turn and the step of one's turn A method characterized by alternately repeating the steps of receiving the player's hand from the player using the chat system.
There is a part that uses the technical means of the chat system, but as a whole, it is only a method that uses only the artificial arrangement of playing shogi by alternately repeating the turn with the player in the remote place. Since there is no such thing, it does not fall under the category of "invention".
Example 6: Distribute a card with n x n numbers (n is an odd number of 3 or more) to each player, and each player has his or her own card with a number selected by a computer lottery. A game method in which the player who checks the numbers in one row of vertical, horizontal, or diagonal is the winner.
There is a part that uses the technical means of lottery by computer, but as a whole, the gamer checks if there is a number selected by lottery on his card, and checks the numbers in a row as soon as possible. It does not fall under the "invention" because it is only a game method that uses only the rule of the game that the person is the winner.
(v) Non-technical ideas
The following is an excerpt from the patent examination standards
(1) Skills (those that can be reached by individual skill and lack objectivity that can be transmitted to a third party as knowledge)
Example 1: How to throw a forkball, which is characterized by how to hold the ball between your fingers and how to throw the ball.
(2) Mere presentation of information (things that are characterized only by the content of the information presented and whose main purpose is the presentation of information)
Example 2: Manual on how to operate the machine or how to use chemicals
Example 3: A CD that is unique only to the recorded music
Example 4: Image data taken with a digital camera
Example 5: An athletic meet program created by a document creation device
Example 6: Computer program list (the presentation (list) of a computer program by printing it on paper, displaying it on a screen, etc.)
It should be noted that the presentation of information (presentation itself, presentation means, presentation method, etc.) having technical features is not merely presentation of information.
Example 7: Test chart for TV receiver
The test chart itself has technical characteristics.
Example 8: A plastic card that records information consisting of letters, numbers, and symbols in a convex shape.
Information engraved on a plastic card by embossing can be transferred by embossing, and there is a technical feature in the means of presenting information.
(3) Mere aesthetic creation
Example 9: Painting, sculpture, etc.
(vi) Although means for solving the problem of the invention are shown, it is clearly impossible to solve the problem by some means.
The following is an excerpt from the patent examination standards
Example: A method of preventing a volcanic eruption by wrapping a neutron-absorbing substance (for example, boron) with a substance with a relatively high melting point (for example, tungsten), making it spherical, and throwing a large number of them into the bottom of the crater.
The volcanic eruption is premised on the false causal relationship that uranium and the like are fissioned at the bottom of the crater.
About business model patents
Recently, there have been many inquiries about business model patents.
However, what the customer considers to be a business model patent is often an artificial arrangement and is not a legal invention in many cases.
In order to be recognized as a legal invention, the invention must utilize the "law of nature".
The method that all humans do is not a legal invention.
On the other hand, the method using a computer can be said to use the "law of nature" and corresponds to a legal invention.
For example, in the delivery of pizza, the method of issuing a free ticket to the customer when the delivery is completed 30 minutes after receiving the order is an artificial agreement and does not use the laws of nature, so it is legal. It is not an invention and is not a business model patent.
On the other hand, in a system where a customer requests delivery of pizza using a smartphone and the delivery person also taps the completion of pizza delivery on the smartphone, if 30 minutes or more have passed from the request time to the delivery completion time, the customer's smartphone will be notified. The system for sending free coupons next time uses a computer, so it can be said that it uses the laws of nature, but it is a legal invention and falls under a business model patent (the problem of novelty and inventive step is It is different).
What are industrially usable inventions?
"Industrial applicability" as stipulated in Article 29 of the Patent Act means that an invention can be implemented as a general invention, and means that inventions that can only be used academically or experimentally are excluded.
"Industry" means production industries such as industry, mining, agriculture, and fisheries, but from the viewpoint that the Patent Law uses the laws of nature (Patent Law, Article 2, Paragraph 1). It also includes auxiliary industries such as transportation and telecommunications that do not involve production.
Even service industries such as insurance, finance, and advertising are included in the industry if the laws of nature are used.
For example, a computer-based ordering system is a legal invention.
On the other hand, human arrangements do not use the laws of nature and are not legal inventions.
"Use" is understood to be sufficient if there is a possibility of use in the future.
Given the reality that entrepreneurs take a considerable amount of time and the purpose of the patent system, such inventions are considered to be the ones that need to be encouraged and protected for commercialization.
It is understood that economic efficiency is not necessary for "industrial applicable inventions".
Profitability has nothing to do with the technical value of an invention, and its economic value depends on the social situation at the time.
In principle, industrial applicability is not denied even if it involves technical disadvantages.
This is because creating a new effect usually involves some disadvantages, and the disadvantages can often be eliminated by improvement or the like.
Items that do not fall under "industrial use"
① How to operate, treat or diagnose humans
The method of surgery, treatment or diagnosis of human beings, that is, "medical practice", is not a legal invention.
Medical devices, medicines, methods of processing humans, etc. are legal inventions.
"Methods for operating humans" include those that are not intended for treatment or diagnosis, such as cosmetic surgery, and preparatory procedures (anesthesia methods) for surgery, which are not legal inventions. is.
"Methods of treating humans" include methods of measuring the internal or external condition of humans, or the shape or size of each organ of humans, in order to operate, treat or diagnose humans. It is not a legal invention.
(2) Inventions that cannot be used as a business
For example, inventions that are used only personally, such as smoking methods, and inventions that are used only academically and experimentally.
(3) Inventions that cannot be clearly implemented
For example, a method of covering the entire earth surface with UV-absorbing plastic to prevent the increase of UV rays due to the decrease of the ozone layer.
Surgical operation method case (Tokyo High Court decision on April 11, 2002)
In the case of medicines and medical devices, even if they are the subject of patents, for doctors who are actually trying to practice medical treatment, all the abilities and means they currently have (medicines and medical devices are theirs). There is nothing to prevent the medical practice by making full use of the center), and doctors can exert their own power without any restrictions.
Although it is possible that medicines and medical devices that doctors would normally want to use cannot be used because they are subject to patents, it is in the form that doctors cannot obtain them. Since it only appears in the medical practice, it does not prevent doctors from maximizing their current abilities and means at the time when they actually try to practice medical treatment. Doctors can practice medical treatment without worrying that what they are trying to do is the subject of a patent.
In the case of medical practice, the situation is different from the above. Under the system that the medical practice itself is patentable, there is always the possibility that the medical practice that the doctor is actually trying to perform is the subject of the patent, at least conceptually. Will be done.
Moreover, in general, it is not always immediately unambiguous whether or not an act is subject to the exercise of a patent right, and as a result, for an act that is not considered to be patent infringement. However, it is remarkable in this court that claims are often made in the form of injunctions.
How do doctors always find that what they are trying to do is the subject of a patent, and that doing so will result in liability for patent infringement? You may have to deal with medical treatment while being afraid that you will be held responsible.
Under the system of patenting medical practice itself, doctors will have to deal with medical practice in such a situation unless measures are taken to prevent it. be.
It should be said that the system that drives doctors in medical practice into such a situation is extremely unreasonable due to the nature of medical practice, and Japan's patent system does not endorse such a result. Should be said to be a rational interpretation.
And if so, it is exceptional if the Patent Law takes steps to prevent such consequences, otherwise, except that the Patent Law does not recognize patentability for medical practice itself. It should be said that it is not.
However, the Patent Law is an invention related to the formulation of pharmaceuticals even when it is clarified that medicines and their formulation methods, together with food and drink, are excluded from non-patent grounds and are subject to the protection of patents. With regard to such patents, a provision (Patent Act Article 69, Paragraph 3) shall be established that "the act of dispensing by the prescription of a doctor or a dentist and the medicine dispensed by the prescription of a doctor or a dentist" shall not be effective. However, no such measures have been taken for patents related to medical practice itself.
As mentioned above, the Patent Law stipulates in Article 1 that "this law aims to encourage inventions and contribute to the development of industry by protecting and utilizing the inventions." , Article 29, paragraph 1 stipulates in the statement that "a person who has made an invention that can be used industrially can obtain a patent for the invention except for the following inventions." No definition is given as to what is included in "industry".
In addition, there is no specific provision that makes medical practice in general a non-patentable reason. As long as that is the case, as mentioned above, generally speaking, there is essentially no reason to narrowly understand the meaning of "industry," but the Patent Law provides the above reasons. It should be understood that there is no other invention related to medical practice that is not patentable, except that it is not considered to be an "industrial applicable invention".
The plaintiff's allegation that the medical practice itself should be patentable, although it has something to listen to as a legislative theory, as mentioned above, is necessary as a premise for recognizing patentability. It cannot be adopted as an interpretation of the current patent law that has not taken any measures.
From this judgment, the court will use medical practice industrially because if a patent is granted for medical practice, doctors will be shy to medical practice if the medical practice may infringe the patent right. As an invention that cannot be obtained, it can be read that the patent right cannot be obtained.
In Europe, as in Japan, medical practice cannot be patented because it is not an industrially applicable invention.
In the United States, medical practice is subject to patents.
However, at the request of an American medical organization, the law was amended in 1996 so that even if the patent right for medical practice is infringed, in principle, it will not be subject to compensation for damages or an injunction.