Article 29, Paragraph 1, of the Japanese Patent Law is quoted below:
Article 29 (Conditions for Patentability)
1. An inventor of an invention that is industrially applicable may be entitled to obtain a patent for the said invention, except for the following:
a. inventions that were publicly known in Japan or a foreign country, prior to the filing of the patent application;
b. inventions that were publicly used in Japan or a foreign country, prior to the filing of the patent application; or c. inventions that were described in a distributed publication, or inventions that were made publicly available through an electric telecommunication line in Japan or a foreign country, prior to the filing of the patent application.
The purpose of the patenting system is to grant exclusive rights of compensation for disclosure of the invention. Therefore, an invention that is granted patent rights must be a new or novel invention.
‘Prior to filing the patent’ does not mean only up to the day before the patent was filed. When determining the novelty of an application, even the hour and minute the application is filed, are considered. Therefore, for example, if an invention is made public in the morning in Japan but the patent application is only filed in the afternoon of that day, it is considered to be publicly known in Japan prior to the filing. If publication of a patent in a foreign country occurs in the morning, when converted to Japan time, and the invention is filed in the afternoon, that invention is considered to have been disclosed in the foreign country prior to the filing of the application in Japan.
A known invention is one that is known to unspecified parties not under an obligation of confidentiality. An invention of a person under the obligation of confidentiality that is disclosed to another party not under such obligation is considered to be ‘a publicly known invention’. Even if the inventor or the applicant has the intent of secrecy, when that invention becomes known, it is considered to be ‘publicly known’.
In the case of a manuscript such as an academic journal, it is generally not left where unspecified parties can get that manuscript. Therefore, an invention disclosed in that manuscript is not a publicly open and known invention until that manuscript is made public.
An invention that is publicly practiced means an invention whose contents are publicly known or an invention that is practiced in a state that could be publicly known. A state in which it is publicly known is, for example, one in which an unspecified party is allowed to tour a factory to see manufacturing conditions, and a person skilled in the art could easily ascertain the content of the invention by viewing the manufacturing conditions. A state where there is no possibility of something becoming publicly known is one in which an unspecified person is allowed to tour a factory to view the manufacturing conditions, and that person cannot ascertain the content of a part of the manufacturing process simply by viewing the outside of the apparatus, but must view the inside of the apparatus or have a worker explain the inside of the apparatus.
A ‘publication’ referred to in the phrase ‘an invention described in a circulated publication’ is a document, drawing or other type of information transmission medium reproduced with the purpose of public circulation.
‘Circulation’ refers to a state in which unspecified people are able to view the publication. To determine the novelty of an application, the fact that someone might have actually seen that publication is not a requirement.