일본의 판정제도에 관한 고찰

Abstract

This article studies the opinion system of Japanese Patent Act. Replacing the trial to confirm the scope of a patent right, the opinion system of Japanese Patent Act was introduced in 1959. The technical scope of a patent right is much more difficult to determine compared to the scope of a right for a tangible article, which accordingly gives rise to more disputes. Also, when working a certain technology, the status of both the patentee and third parties would be unstable if its technical scope were unclear. As a matter of course, such a scope is something that should ultimately be determined in court, but in some situations it would be beneficial if an impartial advisory opinion could be given by the competent authority relating to the patented technology in advance, or while the case is pending. The system established to that end is the opinion system. The proprietor of a patent or any other person may request the patent office to issue an advisory opinion on the technical scope of a patented invention. The discussion of the opinion system has been done in conjunction with that of whether to abolish the trial to confirm the scope of a patent right. Even though designed to replace the trial to confirm the scope of a patent right, the opinion system has a large difference in their nature. The discussion of the opinion system and that of the trial to confirm the scope of a patent right must be carried out at a different point. In other words, whether to improve or to repeal the trial to confirm the scope of a patent right that determined by the Patent Office should be approached from the aspect of the principle of authority distribution and the usefulness. On the other hand, the introduction and operation of opinion system by the Patent Office, should be judged from the aspect of its utility properties. Furthermore admitting that the system for determining the protective scope of th patented invention at the stage before infringement action or in preparation of business, improvement or selection is required as this most appropriate scheme. It must be determined whether or not to abolish the system itself. Also, if abolish systems, by evaluating the confusion associated with it, an alternative to this must be discussed. Although there is no legal binding force, opinion system of Japanese Patent Office has received the social respect. Introducing the opinion system of Japanese Patent Office, we should consider whether those functions of opinion system could be realized in our system.